Robert Henry Lehmuth - Page 10

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         there must be an amount that is immediately due and owing that               
         the obligor is ready, willing, and able to pay.”  Childs v.                  
         Commissioner, 103 T.C. 634, 654 (1994), affd. without published              
         opinion 89 F.3d 856 (11th Cir. 1996).  The amount owed must                  
         either be credited to the taxpayer or set aside for the taxpayer             
         so that the taxpayer has an unrestricted right to receive it                 
         immediately, and the taxpayer being aware of these facts,                    
         declines to accept the payment.  Id.  The constructive-receipt               
         doctrine precludes the taxpayer from deliberately turning his                
         back upon income otherwise available.  Martin v. Commissioner,               
              The determination whether a taxpayer has constructively                 
         received income is essentially a question of fact.  Childs v.                
         Commissioner, supra at 654.  We have long held that the doctrine             
         of constructive receipt is to be applied sparingly.  The doctrine            
         is only to be invoked when the taxpayer has an unrestricted right            
         to receive payment of money that is available to him.                        
         Furstenberg v. Commissioner, 83 T.C. 755, 792-793 (1984); Basila             
         v. Commissioner, 36 T.C. 111, 115-116 (1961) (citing Gullett v.              
         Commissioner, 31 B.T.A. 1067, 1069 (1935)).                                  
              Generally, receipt of payment by an agent is constructive               
         receipt by the principal.  Md. Cas. Co. v. United States, 251                
         U.S. 342, 346-347 (1920); Burkes v. Commissioner, T.C. Memo.                 
         1998-61.  An exception to the general rule exists if there is an             

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