Sainte Claire Corporation - Page 11

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          Sainte Claire's board of directors met and extended payment of              
          the principal thereon".  Moreover, the resolution reflecting the            
          board's action stated that the 1968 note "has matured".                     
               While Mr. Boccardo discussed extending his note with members           
          of Sainte Claire's board and others prior to the due date of the            
          note, we are not persuaded by the record in the instant case that           
          an agreement or understanding that the note would be extended               
          existed prior to the vote of the board on November 1, 1988.                 
          Accordingly, the cases holding that a taxpayer may effectively              
          defer for tax purposes receipt of income payable pursuant to an             
          agreement by entering into a superseding agreement prior to the             
          time the income is due pursuant to the terms of the original                
          agreement, see, e.g., Martin v. Commissioner, supra at 823-824;             
          Oates v. Commissioner, 18 T.C. 570, 584-585 (1952), affd. 207               
          F.2d 711 (7th Cir. 1953); Veit v. Commissioner, 8 T.C. 809, 817-            
          819 (1947); Kimbell v. Commissioner, 41 B.T.A. 940, 948-949                 
          (1940), are not controlling in the instant case because the                 
          agreement to defer payment was not made until Sainte Claire's               
          right to the income became vested.                                          
               The second factor to be considered is whether Sainte Claire            
          was able to collect the principal amount of the 1968 note from              
          Mr. Boccardo at the time it became due.  Petitioners, in arguing            
          that Sainte Claire did not constructively receive the 1968 note             
          principal, stress that no funds of Mr. Boccardo's were                      
          transferred to, set aside for, or otherwise made available to               




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