Tesco Driveaway Co., Inc. - Page 16




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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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