Sainte Claire Corporation - Page 10

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               may have drawn upon it during the taxable year if                      
               notice of intention to withdraw had been given.                        
               However, income is not constructively received if the                  
               taxpayer's control of its receipt is subject to                        
               substantial limitations or restrictions. * * *                         
          Although the doctrine is sparingly applied, a taxpayer will be              
          found to be in constructive receipt of income where the taxpayer            
          had an unrestricted right to receive the income, the taxpayer was           
          able to collect it, and the failure to receive it resulted from             
          the exercise of the taxpayer's own choice.  Murphy v. United                
          States, 992 F.2d 929, 931 (9th Cir. 1993); Bennett v. United                
          States, 293 F.2d 323, 326 (9th Cir. 1961); Childs v.                        
          Commissioner, 103 T.C. 634, 654 (1994), affd. without published             
          opinion 89 F.3d 856 (11th Cir. 1996); Gullett v. Commissioner, 31           
          B.T.A. 1067, 1069 (1935).  But see Pittsburgh-Des Moines Steel              
          Co. v. United States, 360 F. Supp. 597, 600 (W.D. Pa. 1973).  The           
          doctrine prevents a taxpayer from turning its back on income                
          otherwise available.  Hamilton Natl. Bank v. Commissioner, 29               
          B.T.A. 63, 67 (1933).  The question whether a taxpayer has                  
          constructively received income is one of fact.  Avery v.                    
          Commissioner, 292 U.S. 210, 215 (1934); Bennett v. United States,           
          supra at 326; Martin v. Commissioner, 96 T.C. 814, 822 (1991).              
               In the instant case, the evidence shows that, at the time              
          Sainte Claire's board voted on November 1, 1988, to renew the               
          1968 note, it had matured, and Sainte Claire had an unqualified             
          right to receive the principal amount.  The parties stipulated              
          that the 1968 note "became due on November 1, 1988, on which date           




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