- 48 -
142(a); Truesdell v. Commissioner, 89 T.C. 1280, 1296 (1987).
Petitioner bears the burden of proof with respect to the
determinations made in the notice of deficiency.31 Rule 142(a).
Generally, unless otherwise provided, gross income under
section 61 includes net accessions to wealth from whatever source
derived. Commissioner v. Glenshaw Glass Co., 348 U.S. 426, 431
(1955). A gain
constitutes taxable income when its recipient has such
control over it that, as a practical matter, he derives
readily realizable economic value from it. That occurs
when cash * * * is delivered by its owner to the
taxpayer in a manner which allows the recipient freedom
to dispose of it at will, even though it may have been
obtained by fraud and his freedom to use it may be
assailable by someone with a better title to it.
[Rutkin v. United States, 343 U.S. 130, 137 (1952);
citations omitted.]
See also United States v. Rochelle, 384 F.2d 748, 751 (5th Cir.
1967); McSpadden v. Commissioner, 50 T.C. 478, 490 (1968).
The economic benefit accruing to the taxpayer is the controlling
factor in determining whether a gain is income. Rutkin v. United
States, supra; United States v. Rochelle, supra.
Under the “claim of right” doctrine, it is well settled that
unlawful, as well as lawful, gains are included within the
31 Sec. 7491 does not apply to this case because the
examination commenced before July 22, 1998, the effective date of
that section. See Internal Revenue Service Restructuring and
Reform Act of 1998, Pub. L. 105-206, sec. 3001(c)(1), 112 Stat.
727.
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