Glenn Hightower - Page 18

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          funds does not show that petitioner unconditionally renounced his           
          right to the funds.  Petitioner’s renunciation was not pursuant             
          to an “existing” or “fixed” agreement to return the funds.  On              
          the contrary, petitioner intended to return the funds only if he            
          succeeded in rescinding O’Dowd’s buyout.10                                  
                    d.   Conclusion                                                   
               As stated above, income is generally taxable in the year in            
          which the taxpayer receives it unless, under the method of                  
          accounting used by the taxpayer, the amount is properly taxable             
          in another year.  Sec. 451(a).  Under the claim of right                    
          doctrine, this principle applies to income received by a taxpayer           
          and over which the taxpayer has unrestricted use, even if the               
          taxpayer’s claim to the income is disputed by another party.                
          Petitioner accepted and kept the payment and related interest               

               10  Neither party cited Sohio Corp. v. Commissioner, 163               
          F.2d 590 (D.C. Cir. 1947), revg. 7 T.C. 435 (1946).  In that                
          case, the Court of Appeals for the District of Columbia held that           
          a taxpayer which (1) was required by Illinois law to receive                
          income, (2) would have been subject to monetary penalties if it             
          had not received the income, (3) protested the payment, and (4)             
          immediately commenced and later prevailed in a court challenge to           
          the constitutionality of the statute under which the payment was            
          received did not have income in the year of receipt.  Id. at 593.           
               Petitioner’s situation is distinguishable from that of the             
          taxpayer in Sohio Corp. v. Commissioner, supra.  The taxpayer in            
          Sohio Corp. did not receive and retain the payment voluntarily,             
          but rather did so under the compulsion of State law and the                 
          threat of heavy penalties.  Id. at 593.  In contrast, petitioner            
          agreed to be bound by the shareholders’ agreement that contained            
          the buyout provision and arbitration procedures.  The receipt,              
          retention, and deposit of funds in petitioner’s bank account were           
          voluntary.                                                                  




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