Sainte Claire Corporation - Page 14

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          120 (1942); Lewis v. Commissioner, 30 B.T.A. 318, 324 (1934).               
          The rule is summarized in the following excerpt from Oliver v.              
          United States, 193 F. Supp. 930, 933 (E.D. Ark. 1961), which we             
          quoted with approval in Martin v. Commissioner, 96 T.C. at 823-             
          824:                                                                        
               [Where a taxpayer] acquires an unconditioned vested                    
               right to receive the proceeds of the sale, and the                     
               buyer is ready, willing, and able to make payment, the                 
               taxpayer cannot avoid treating the proceeds as income                  
               for that year by voluntarily declining to accept                       
               payment during that year, or by requesting the                         
               purchaser not to pay him until a later year, or even by                
               voluntarily putting himself under some legal disability                
               or restriction with respect to payment.  In such                       
               circumstances, he will be deemed in constructive                       
               receipt of the income notwithstanding his refusal to                   
               accept payment or his self-imposed restraints on                       
               payment.  [Emphasis supplied.]                                         
               Petitioners contend that tax considerations played no part             
          in the decision to renew Mr. Boccardo's note and that there were            
          valid business reasons for the renewal.  However, the presence or           
          absence of a tax avoidance motive does not control the                      
          applicability of the constructive receipt doctrine here.  As was            
          stated in Loose v. United States, 74 F.2d 147, 150 (8th Cir.                
          1934):                                                                      
               If the sole basis and reason for constructive receipt                  
               of income were the avoidance of fraud in tax evasion,                  
               * * * [the taxpayer's] argument would carry much force                 
               because there was obviously no thought of tax evasion                  
               here.  However, the strongest reason for holding                       
               constructive receipt of income to be within the statute                
               is that for taxation purposes income is received or                    
               realized when it is made subject to the will and                       
               control of the taxpayer and can be, except for his own                 
               action or inaction, reduced to actual possession.  So                  
               viewed, it makes no difference why the taxpayer did not                




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