- 13 - 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).Page: Previous 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 Next
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