Menard, Inc. - Page 94

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          Menard.  Consequently, Mr. Menard is liable for tax on the full             
          amount of the excess TMI expenses, $1,619,918.                              
          V.  Constructive Receipt of Interest Income                                 
               Respondent alleges that in 1998 Mr. Menard constructively              
          received interest income in the amount of $639,302 from loans Mr.           
          Menard made to Menards.  On its tax return for TYE 1998, Menards            
          deducted the accrued interest but did not issue a check to Mr.              
          Menard until January 29, 1999.  After receiving the check, Mr.              
          Menard reported the interest income on his 1999 tax return.                 
          Respondent contends that Mr. Menard should have reported the                
          interest income in 1998 for the following reasons:  (1) Menards             
          had credited the interest income to Mr. Menard’s account, making            
          it available for Mr. Menard’s use during 1998, and (2) as                   
          president, Mr. Menard had the authority to demand payment of the            
          accrued interest at any time.                                               
               Section 61(a)(4) includes interest in a taxpayer’s gross               
          income.  Section 1.451-2(a), Income Tax Regs., provides:                    
               (a) General rule.  Income although not actually reduced                
               to a taxpayer’s possession is constructively received                  
               by him in the taxable year during which it is credited                 
               to his account, set apart for him, or otherwise made                   
               available so that he may draw upon it at any time, or                  
               so that he could have drawn upon it during the taxable                 
               year if notice of intention to withdraw had been given.                
               However, income is not constructively received if the                  
               taxpayer’s control of its receipt is subject to                        
               substantial limitations or restrictions.  * * *                        







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