Elmo B. and Donna L. Nunnemaker - Page 7

                                        - 6 -                                         
               It is well-settled law that interest credited to a                     
          taxpayer’s bank account, which is available to the taxpayer upon            
          demand without any restrictions, constitutes gross income in the            
          year such interest is credited to the taxpayer’s account.                   
          Petitioners stipulated that the interest at issue was credited to           
          their respective accounts and that they could have withdrawn the            
          interest upon demand without restriction.  Sec. 62(a)(9); cf.               
          Kelley v. Commissioner, T.C. Memo. 1991-324 (a taxpayer’s claim             
          that funds in a certificate of deposit were not available until             
          the date of maturity failed because the funds were available for            
          a fee--a penalty for early withdrawal), affd. 988 F.2d 1218 (11th           
          Cir. 1993).  The fact that petitioners did not withdraw any of              
          the interest was entirely due to their own volition.  See Murphy            
          v. United States, 992 F.2d 929, 931 (9th Cir. 1993) (The                    
          taxpayer’s “failure to withdraw his gains immediately was little            
          different from a failure to withdraw interest which has been                
          credited to a bank account.  Absent substantial limitations, the            
          interest is taxable, whether withdrawn or not.”).  Thus, it is              
          not relevant that petitioners did not have actual receipt of the            
          interest in hand because it is sufficient that they had                     
          constructive receipt of it.                                                 
               In view of the foregoing, we sustain respondent’s                      
          determination.                                                              








Page:  Previous  1  2  3  4  5  6  7  8  Next

Last modified: May 25, 2011