Aldrich H. Ames - Page 13




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          the years in issue represent cash received from the Soviet Union            
          during the years of the deposits.  Petitioner argues, however,              
          that most of the amounts he received during the taxable years               
          under consideration were constructively received in 1985.7                  
               A taxpayer reporting income on the cash method of                      
          accounting, such as petitioner, must include an item in income              
          for the taxable year in which the item is actually or                       
          constructively received.  See sec. 451(a).  The concept of                  
          constructive receipt is well established in tax law.  The courts            
          have regularly looked to section 1.451-2(a), Income Tax Regs.,              
          for the following definition of the term “constructive receipt”:            
                    (a) General rule.  Income although not actually                   
               reduced to a taxpayer's possession is constructively                   
               received by him in the taxable year during which 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 during                
               the taxable year if notice of intention to withdraw had                
               been given.  However, income is not constructively                     
               received if the taxpayer's control of its receipt is                   
               subject to substantial limitations or restrictions.                    
               * * *                                                                  




               7 At trial, petitioner testified that he constructively                
          received but fraudulently failed to report the illicit income for           
          1985.  He explained that if he had reported the income on his               
          Federal income tax return, his illicit and secret relationship              
          with the Soviet Union would have been revealed.  We note that               
          petitioner’s concession may have placed him at a disadvantage               
          irrespective of our holding here.  For example, if petitioner               
          fraudulently failed to report income for 1985, the period for               
          assessment would not have expired for 1985.  See sec. 6501(c)(1).           




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