Tesco Driveaway Co., Inc. - Page 6




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               Petitioner argues that its deduction should be allowed                 
          because Doyce Gentry and his sons constructively received the               
          compensation by the end of petitioner’s fiscal year on July 31,             
          1994, and were therefore required under section 451 to include              
          that income when it was constructively received.  Petitioner                
          admits that it has the burden of proof to show that Doyce Gentry            
          and his sons constructively received the compensation by July               
          31, 1994.                                                                   
               Section 1.451-2, Income Tax Regs., defines constructive                
          receipt as follows:                                                         
               Income although not actually reduced to a taxpayer’s                   
               possession is constructively received by him in the                    
               taxable year during which it is credited to his                        
               account, set apart for him, or otherwise made                          
               available so that he may draw upon it at any time, or                  
               so that he could have drawn upon it during the taxable                 
               year if notice of intention to withdraw had been                       
               given.  However, income is not constructively received                 
               if the taxpayer’s control of its receipt is subject to                 
               substantial limitations or restrictions. * * *                         
               Petitioner argues that since Doyce Gentry was petitioner’s             
          sole officer, director, and owner, and had sole check-writing               
          authority over petitioner’s accounts, he had the unfettered                 
          ability to withdraw the compensation at any time, and thus                  
          should be treated as if he constructively received the                      
          compensation by the end of petitioner’s fiscal year.                        
               Respondent notes that Doyce Gentry may have had the                    
          unfettered ability to withdraw funds from petitioner’s bank                 
          accounts, but he did not have the right to receive the                      





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