Aldrich H. Ames - Page 15




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               Assuming arguendo that some type of account was created and            
          funds were segregated for petitioner, he did not have ready                 
          access to it, and certain conditions had to be met or had to                
          occur before he could gain physical access to any funds.                    
          Petitioner had to contact the Soviets, using a complex                      
          arrangement of signal sites, to determine whether a “withdrawal”            
          could be made.  Next, the Soviets had to arrange to have the cash           
          transferred into the United States and have it secretly left in a           
          prearranged location for petitioner.  There was no certainty that           
          these conditions and steps could be accomplished under the                  
          existing circumstances, and the conditions represented                      
          substantial risks, limitations, and restrictions on petitioner’s            
          control of the funds, assuming they were even in existence and              
          segregated for his exclusive benefit.  See Paul v. Commissioner,            
          T.C. Memo. 1992-582 (no constructive receipt where taxpayer would           
          have had to travel 68 miles in order to turn in winning lottery             
          ticket).  There is no constructive receipt of income where                  
          delivery of the cash is not dependent solely upon the volition of           
          the taxpayer.  See Hornung v. Commissioner, supra at 435.                   
               So long as the Soviets retained control over any funds or              
          promised set-asides, there was no practical or legal way in which           
          petitioner could compel payment.  Constructive receipt of income            
          has been found where a corporation offers payment or pays by                
          check in one year, but the recipient refuses delivery or fails to           





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