Aldrich H. Ames - Page 16




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          cash the check until the following year.  See, e.g., Frank v.               
          Commissioner, 22 T.C. 945 (1954), affd. per curiam 226 F.2d 600             
          (6th Cir. 1955); Southeastern Mail Transp., Inc. v. Commissioner,           
          T.C. Memo. 1987-104.  Here, no such proffer was made, and                   
          petitioner did not have a legally enforceable claim.  If the KGB            
          had questioned petitioner’s loyalty at any time before payment,             
          there is no assurance that petitioner would have continued to               
          receive cash deliveries or payments.  So long as the Soviet Union           
          retained the ability to withhold or control the funds, there was            
          no constructive receipt.  Petitioner did not constructively                 
          receive the income before it was made physically and/or                     
          practically available to him.  Accordingly, we hold that                    
          petitioner received and failed to report income in the amounts of           
          $745,000, $65,000, $91,000, and $187,000 for the years 1989,                
          1990, 1991, and 1992, respectively.                                         
          III.  Is Petitioner Liable for the Negligence Penalty?                      
               Respondent determined that each of petitioner’s                        
          underpayments was due to negligence or disregard of rules or                
          regulations.  Section 6662(a) and (b)(1) provides for an                    
          accuracy-related penalty equal to 20 percent of the portion of              
          the underpayment that is attributable to negligence or disregard            
          of rules or regulations.  Petitioner must show that respondent’s            
          determination is erroneous.  See Rule 142(a).                               







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