William J. and Sandra D. Heitz - Page 27

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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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