William J. and Sandra D. Heitz - Page 29

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          assets were needed for an upcoming plant expansion.  We recognize           
          that there is no constructive receipt where the payor lacks the             
          funds to make the payments.  Estate of Noel v. Commissioner, 50             
          T.C. 702, 706-707 (1968).  However, no evidence was presented               
          that Exacto was indebted to any creditors or was financially                
          impaired during the period in question.  General statements                 
          concerning future expansions are insufficient to justify not                
          applying the constructive receipt doctrine.  Accordingly, there             
          was constructive receipt, and we find for respondent on this                
          issue.                                                                      
          Issue 4.  Accuracy-Related Penalty:  Mr. and Mrs. Heitz                     
               Respondent determined that Mr. and Mrs. Heitz were liable              
          for penalties under section 6662(a) and (b)(1) for each of the              
          years in issue because they were negligent in failing to include            
          the interest income on their returns.  We sustain respondent's              
          determination.                                                              
               In determining whether Mr. and Mrs. Heitz were negligent in            
          the preparation of their returns, we take into account Mr. Heitz’           
          business experience.  Wise v. Commissioner, T.C. Memo. 1997-135.            
          Mr. Heitz, a sophisticated taxpayer, manipulated the timing of              
          the interest payments in order to defer the recognition of                  
          income.  Accordingly, petitioners Mr. and Mrs. Heitz are liable             
          for the section 6662(a) penalties.                                          







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