Lee G. Gale - Page 26




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               In the cases at hand, petitioner had taxable receipt of the            
          settlement proceeds, even though he did not physically receive              
          them.  The funds were paid at petitioner’s direction (under the             
          terms of the settlement agreement signed by petitioner) to                  
          petitioner’s attorney, to be deposited into an attorney/client              
          trust account.  Petitioner’s attorney was acting as petitioner’s            
          agent or petitioner’s creditor in receiving the settlement                  
          proceeds and depositing them into a trust account pending                   
          resolution of an attorney’s-fee dispute between petitioner and              
          his counsel unrelated to United Ready Mixed’s liability to                  
          petitioner.  There is no need to consider the doctrine of                   
          constructive receipt because petitioner did not delay United                
          Ready Mixed’s payment.12  As between petitioner and United Ready            
          Mixed, the settlement amount was fully paid in 1992.  United                
          Ready Mixed retained no interest in the funds after they were               
          paid, at petitioner’s direction pursuant to the terms of the                
          settlement agreement, to petitioner’s attorney.  Any restriction            

               12“Constructive receipt” as defined in sec. 1.451-2(a),                
          Income Tax Regs., is a legal term of art that applies when                  
          payment has not been effected because of the payee’s postponing             
          payment.  The term “constructive receipt” could also be used in             
          its vernacular sense for any payment not physically received by             
          the taxpayer.  A taxpayer has “constructive receipt”, in its                
          vernacular sense, of funds paid directly to the taxpayer’s agents           
          or creditors.  The legal doctrine of constructive receipt defined           
          in sec. 1.451-2(a), Income Tax Regs., however, does not apply to            
          completed payments received by a payee’s agents or creditors.  We           
          have used the term “taxable receipt” to distinguish between                 
          physical receipt and nonphysical receipt that the law treats as             
          received for tax purposes.                                                  






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