Reginald Maurice Wise and Shannon Rae Wise - Page 15

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          Respondent argues that WRI lacked the funds to make the principal            
          and interest payments, and therefore there was no constructive               
          receipt by Hersco.  We agree with respondent.                                
               A cash basis taxpayer such as Hersco must include in its                
          income amounts which it actually or constructively received. Sec.            
          1.451-1(a), Income Tax Regs.; see Corliss v. Bowers, 281 U.S. 376            
          (1930).  Whether a taxpayer constructively received income is a              
          question of fact.  Avery v. Commissioner, 292 U.S. 210 (1934);               
          Willits v. Commissioner, 50 T.C. 602, 612-613 (1968).  There is              
          no constructive receipt if the payor lacks the funds to make the             
          payments.  Estate of Noel v. Commissioner, 50 T.C. 702, 706-707              
          (1968); Jacobs v. Commissioner, 22 B.T.A. 1166, 1169 (1931).                 
               In the instant case, Hersco did not receive payments of                 
          principal or interest in cash or property.  The payments existed             
          only as yearend journal entries in the books and records of WRI              
          and Hersco.  Petitioners did not show that WRI had enough funds              
          to make the payments.  WRI reported a $784,160 loss in 1988.  The            
          mere showing of a payment on the books of WRI and Hersco does not            
          constitute receipt.  See sec. 1.451-2(a), Income Tax Regs.  We               
          conclude that Hersco did not constructively receive the capital              
          gain and interest income, and that they are not includable in                
          Hersco's 1988 gross income.  We agree with respondent on this                
          issue.                                                                       








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