- 16 - 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 afterPage: Previous 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Next
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