Augustin B. Jombo - Page 6




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          out that he had the opportunity to sell his future winnings, but            
          he decided not to do so.  He contends that he constructively                
          received payment of all of his lottery winnings in 1989 because             
          he had an unqualified vested right to sell his future lottery               
          payments in 1989.  We disagree for reasons stated next.                     
               1.   Whether Petitioner Constructively Received All of His             
                    Lottery Winnings in 1989                                          
               A cash method taxpayer generally recognizes an item of gross           
          income when it is actually or constructively received.  Secs.               
          1.446-1(c)(1)(i), 1.451-2(a), Income Tax Regs.  A cash method               
          taxpayer constructively receives funds if the taxpayer has an               
          unqualified, vested right to receive immediate payment.  Childs             
          v. Commissioner, 103 T.C. 634, 654 (1994), affd. without                    
          published opinion 89 F.3d 856 (11th Cir. 1996); Martin v.                   
          Commissioner, 96 T.C. 814, 823 (1991); Jerome Castree Interiors,            
          Inc. v. Commissioner, 64 T.C. 564, 568 (1975), affd. without                
          published opinion 539 F.2d 714 (7th Cir. 1976).                             
               The NYSL did not offer to pay petitioner all of his lottery            
          winnings in 1989.  Thus, petitioner did not constructively                  
          receive all of his NYSL lottery winnings from the NYSL in 1989.             
               2.   Whether Petitioner Constructively Received Winnings               
                    Because He Could Have Sold the Right To Receive Future            
                    Lottery Payments in 1989                                          
               Petitioner contends that he constructively received all of             
          his lottery winnings in 1989 because he could have sold the right           
          to receive his future lottery payments at a 50-percent discount             





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