Chris Alan Roberts - Page 4

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               Petitioner argues that, despite receipt of the distribution             
          check at his residence during July 1997, he was unable to “apply”            
          or cash it until May 1998 following his release from prison.  On             
          that basis, petitioner contends that the 401(k) distribution                 
          should not be included in income for 1997.  Conversely,                      
          respondent argues that petitioner actually or constructively                 
          received income based on the receipt of the distribution check at            
          petitioner’s residence during July 1997.  To prevail, petitioner             
          must show that the distribution should not be recognized in his              
          1997 income.5  Rule 142(a).                                                  
               Income, although not actually reduced to a taxpayer’s                   
          possession, is constructively received during the taxable year it            
          is (1) credited to a taxpayer’s account, (2) set apart for a                 
          taxpayer, or (3) otherwise made available to the taxpayer.                   
          However, income is not constructively received if the taxpayer’s             
          control of the income is subject to substantial limitations or               
          restrictions.  See sec. 1.451-2(a), Income Tax Regs.; see also               
          Ames v. Commissioner, 112 T.C. 104 (1999); Childs v.                         
          Commissioner, 103 T.C. 634 (1994).  Further, for taxation                    
          purposes income is received or realized “when it is made subject             
          to the will and control of the taxpayer and can be, except for               
          his own action or inaction, reduced to actual possession”.                   

               5 While the examination commenced after July 22, 1998,                  
          petitioner does not meet the burden shifting requirements of sec.            

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