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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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