James R. Palmer and Linda D. Palmer - Page 25




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        agreement is not yet due, a taxpayer may elect to defer that                  
        income further by entering into a superseding binding contract or             
        agreement.  See Veit v. Commissioner, 8 T.C. 809 (1947); Kimbell              
        v. Commissioner, 41 B.T.A. 940 (1940).                                        
             In Oliver v. United States, 193 F. Supp. 930, 933 (E.D. Ark.             
        1961), the U.S. District Court summarized the foregoing principles            
        of the constructive-receipt doctrine as follows:                              
             Where income, although not actually received, is unqual-                 
             ifiedly and without substantial limitation available to                  
             the taxpayer in a given year, and his failure actually                   
             to receive it is due to nothing other than his own                       
             volition, then such income is considered as having been                  
             constructively received during that year, and it must be                 
             so reported and the tax paid thereon. * * * But, if                      
             during the tax year in question the taxpayer has no                      
             right to receive income, or if his right to receive it                   
             is subject to substantial qualifications or restric-                     
             tions, then he will not be deemed to have received such                  
             income constructively during that year. * * *                            
                  When the item of income in question consists of the                 
             proceeds of a sale by the taxpayer of merchandise or                     
             other property * * * and where the sale is completed in                  
             a given year and the taxpayer at the time acquires an                    
             unconditioned vested right to receive the proceeds of                    
             the sale, and the buyer is ready, willing, and able to                   
             make payment, the taxpayer cannot avoid treating the                     
             proceeds as income for that year by voluntarily declin-                  
             ing to accept payment during that year, or by requesting                 
             the purchaser not to pay him until a later year, or even                 
             by voluntarily putting himself under some legal disabil-                 
             ity or restriction with respect to payment.  In such                     
             circumstances, he will be deemed in constructive receipt                 
             of the income notwithstanding his refusal to accept                      
             payment or his self-imposed restraints on payment. * * *                 
                  On the other hand, it must be recognized that a                     
             taxpayer has a perfect legal right to stipulate that he                  
             is not to be paid until some subsequent year, or that                    
             the payments are to be spread out over a number of                       
             years.  Where such a stipulation is entered into between                 





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