Eleanor A. Burkes - Page 11

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          by Ms. Burkes' attorney, Ms. Burkes did not have the $55,636                
          available for her benefit until 1991.                                       
               We have found, based on the parties' stipulation of facts,             
          that the Cleveland Municipal Court garnished $55,645.82 from Mr.            
          Burkes during 1990.  We have also found that $47,668.31 was                 
          received by Ms. Burkes' attorney as of December 27, 1990, and               
          that $7,977.51 was not received by Ms. Burkes' attorney until               
          January 8, 1991.  Additionally, we have found that $4,364 was               
          received by Ms. Burkes from Mr. Burkes during 1991.  Accordingly,           
          with respect to the $7,977.51 and $4,364 amounts, Ms. Burkes is             
          required to include those amounts in her 1991 income.  As to the            
          $7,977.51 amount, we find respondent's 1990 determination for Ms.           
          Burkes to be in error.                                                      
               As to the $47,668.31 received by Ms. Burkes' attorney as of            
          December 27, 1990, the principles of constructive receipt dictate           
          that we hold that Ms. Burkes was required to report that amount             
          as alimony for 1990 even though she did not actually physically             
          receive that amount until 1991.                                             
               Receipt of payment by an agent is constructive receipt by              
          the principal.  Maryland Cas. Co. v. United States, 251 U.S. 342,           
          346 (1920);  Joyce v. Commissioner, 42 T.C. 628, 639 (1964).                
          Even if it were agreed between the agent and the principal that             
          the agent would not distribute the funds received to the                    
          principal until a subsequent year, courts have found constructive           





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