- 15 - 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.Page: Previous 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 Next
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