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Following the regulatory definition, courts have held that
income is recognized when a taxpayer has an unqualified, vested
right to receive immediate payment. See Martin v. Commissioner,
96 T.C. 814, 823 (1991); Ross v. Commissioner, 169 F.2d 483, 490
(1st Cir. 1948), revg. and remanding on another issue a
Memorandum Opinion of this Court. Normally, the constructive
receipt doctrine precludes the taxpayer from deliberately turning
his back on income otherwise available. See Martin v.
Commissioner, supra; Young Door Co. v. Commissioner, 40 T.C. 890,
894 (1963). Here, however, petitioner relies on constructive
receipt as a foil to respondent’s determination that the unlawful
income was reportable during the years before the Court. In any
event, the essence of constructive receipt is the unfettered
control over the date of actual receipt. See Hornung v.
Commissioner, 47 T.C. 428, 434 (1967).
The determination of whether a taxpayer has constructively
received income is to be made largely on a factual basis. See
Hughes v. Commissioner, 42 T.C. 1005, 1012 (1964). Resolution of
the controversy in petitioner’s favor depends on whether he can
show that he constructively received about $2 million in 1985,
the year he was informed that an amount had been set aside for
him. Under the circumstances here, petitioner did not possess
“unfettered control” over the $2 million in 1985.
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