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constructively. Sec. 1.451-1(a), Income Tax Regs. It is well
established that income is constructively received by a taxpayer
when “it is credited to his account, set apart for him, or
otherwise made available so that he may draw upon it at any time,
or so that he could have drawn upon it * * * if notice of
intention to withdraw had been given.” Sec. 1.451-2(a), Income
Tax Regs. Whether the taxpayer has the necessary control over
the income to constitute constructive receipt is a question of
fact. Willits v. Commissioner, 50 T.C. 602, 612-613 (1968).
We have described in our findings of fact the authority that
Exacto vested in Mr. Heitz. Mr. Heitz was the president and
chief executive officer of Exacto and was responsible for overall
company finances. He had the power to cause the interest in
question to be paid timely. As this Court has stated with
respect to the doctrine of constructive receipt:
Respondent contends * * * that no evidence was
presented here that petitioner's board of directors had
taken any action that would bind the corporation to pay
the interest. To the contrary, we feel that no further
corporate action was necessary here. On the record
herein, to require petitioner's board to authorize
payment of the interest income at issue as a condition
to our finding constructive receipt in this case would
be a meaningless requirement on our part and an
unnecessary gesture on its part since the corporation
had already vested * * * [the employee] with the
authority to pay the interest whenever requested by the
debenture holders or whenever she determined to credit
it to their personal accounts. * * * [F.D. Bisset &
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