- 10 - 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 datePage: Previous 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 Next
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