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should apply differently depending on whether actual receipt
occurs during the same or the following calendar year. We
disagree with petitioner’s suggestion. The constructive receipt
doctrine necessarily looks to the facts at the time of alleged
constructive receipt. Events occurring later, such as the
timing of the actual payment, should not affect the functioning
of the doctrine.
Similarly, the statutory language does not focus on the
date that the recipient reported the income, but rather on the
date that the income should have been reported. The statute
refers to the income’s being “includible” not “included” in the
gross income of the recipient. Sec. 267(a)(2)(A). Under a
literal reading of the statute, an error in accounting for the
item by the recipient, another taxpayer, would not improve
petitioner’s position.
However, the Court in Jerome Castree Interiors v.
Commissioner, supra, did suggest that the recipient’s failure to
include the funds in income at the time of alleged constructive
receipt is a factor to be considered in denying constructive
receipt, because it shows that the recipient did not believe
that constructive payment had been made. Id. at 571. Here, the
only documentary evidence submitted to the Court, petitioner’s
Form 941, shows that the parties treated the compensation as
earned in the fourth quarter of 1994--a period commencing after
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