Tesco Driveaway Co., Inc. - Page 19




                                        - 19 -                                        
          grounds are unavailing.                                                     
               The cases cited by petitioner in support of its position               
          that the funds were constructively received prior to end of its             
          fiscal year are not on point.  Petitioner cites White v.                    
          Commissioner, 61 T.C. 763 (1974), and Haack v. Commissioner,                
          T.C. Memo. 1981-13, for the proposition that Doyce Gentry’s                 
          unfettered power should be enough to establish constructive                 
          receipt.  In both cases, the specific amount of the constructive            
          recipient’s compensation had been determined in advance through             
          proper corporate action.  In White, the corporation had                     
          determined the amount of the shareholder’s bonus in advance                 
          through a proper corporate resolution and had given him the                 
          power to withdraw the funds whenever he wished.  White v.                   
          Commissioner, supra at 764.  Similarly, in Haack v.                         
          Commissioner, supra, the bonuses had been awarded to the                    
          controlling shareholder through proper corporate resolutions                
          prior to the end of the corporation’s fiscal year.  This Court              
          in White and Haack did not address the issue here--whether the              
          employee would have been in constructive receipt of the                     
          compensation if the corporation had not determined and awarded              
          the compensation in advance through proper corporate procedures.            
               Petitioner also cites Fetzer Refrigerator Co. v. United                
          States, 437 F.2d 577 (6th Cir. 1971), O.H. Kruse Grain & Milling            
          v. Commissioner, T.C. Memo. 1959-110, affd. 279 F.2d 123 (9th               






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

Last modified: May 25, 2011