- 27 - 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 &Page: Previous 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 Next
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