William J. and Sandra D. Heitz - Page 28

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               Son, Inc. v. Commissioner, 56 T.C. 453, 462-463 (1971);                
               citation omitted.6]                                                    
               It is the right rather than the power to receive income that           
          determines whether such income is constructively received.  Id.             
          at 463.  However, Mr. and Mrs. Heitz had the right to receive the           
          interest income at the time that it was accrued.  Nothing in the            
          record indicates that the interest in question was not subject to           
          their unqualified demands thereafter.  Mr. and Mrs. Heitz argue             
          that Mr. Heitz had no discretion to order payment because two               
          signatures were required to validly issue an Exacto check.  We              
          find this argument unpersuasive.  Mr. and Mrs. Heitz presented no           
          evidence that Mr. Heitz ever requested that a check be issued for           
          the interest payments or that such a request would have been                
          denied.  Mr. Heitz had the right and authority to order the                 
          payment of interest that had accrued.  See Fountain v.                      
          Commissioner, 59 T.C. 696, 705-706 (1973).                                  
               Mr. and Mrs. Heitz contend that Exacto did not have the                
          funds available to pay the interest in question.  On December 31,           
          1992 and 1993, Exacto held cash, cash equivalents, and marketable           
          securities in the amounts of $2,792,123 and $3,129,900,                     
          respectively.  Mr. and Mrs. Heitz contend that these liquid                 

               6 Most of the cases discussing the doctrine of constructive            
          receipt with respect to interest income apply to sec. 267.  In              
          the cited case, the Commissioner was arguing that there was no              
          constructive receipt of interest income by the employee in order            
          to deny the employer-corporation the corresponding deduction.               





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