Menard, Inc. - Page 95

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          Whether a taxpayer constructively received income is a question             
          of fact.  Willits v. Commissioner, 50 T.C. 602, 613 (1968).                 
               According to petitioners’ interpretation of the facts,                 
          although Mr. Menard was the president and controlling shareholder           
          of Menards and had the power to order Menards to distribute funds           
          to him, Mr. Menard did not have an unqualified, vested right to             
          receive the interest in 1998.  Petitioners also contend that even           
          though Menards was financially able to pay Mr. Menard in 1998,              
          Menards did not set the funds aside for that purpose.                       
               In support of their position, petitioners rely on Jerome               
          Castree Interiors, Inc. v. Commissioner, 64 T.C. 564 (1975),                
          affd. without published opinion 539 F.2d 714 (7th Cir. 1976).  In           
          Jerome Castree Interiors, Inc., which involved section 267 and              
          transactions between related taxpayers, the taxpayer-                       
          corporation’s president and his brother, both cash basis                    
          taxpayers, reported bonuses that had accrued in the preceding               
          year on their tax returns for the year in which the bonuses were            
          paid.  During the accrual year, the total amount of bonuses to be           
          awarded had not been allocated among the individual officers.               
          However, on its tax return for that year, the taxpayer-                     
          corporation, an accrual basis taxpayer, deducted the total bonus            
          amount.  We held in Jerome Castree Interiors, Inc. that the                 
          taxpayer-corporation’s president and his brother did not                    






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