Arthur F. Millard - Page 6

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                    (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.  * * *                  
          Consequently, a cash method taxpayer constructively receives                
          income as of the date that a check is received absent a                     
          substantial limitation.  Furstenberg v. Commissioner, 83 T.C.               
          755, 791 n.28 (1984); Kahler v. Commissioner, 18 T.C. 31, 34-35             
          (1952); Roberts v. Commissioner, T.C. Memo. 2002-281.  In the               
          instant case, the record reflects that the original check was not           
          subject to substantial limitations, and petitioner makes no                 
          contention otherwise.  Consequently, we find that petitioner                
          constructively received $10,841.06 of income upon his receipt of            
          the original check in 2001.4  Accordingly, petitioner’s 2001                
          gross income includes the IRA distribution of $10,841.06.                   
               Petitioner’s reliance on Georgia commercial statutes and               
          related caselaw is misplaced.  While State law creates legal                
          interests and rights, it does not override the Federal doctrine             

               4Petitioner was also in actual receipt of the check, which             
          we have held to constitute a cash equivalent.  In Martin v.                 
          Commissioner, T.C. Memo. 1992-331 (citing Lavery v. Commissioner,           
          158 F.2d 859, 860 (7th Cir. 1946), affg. 5 T.C. 1283 (1945)),               
          affd. 987 F.2d 770 (5th Cir. 1993), we stated:  “The receipt of a           
          check is tantamount to the receipt of cash, even if the check is            
          not deposited or otherwise negotiated, provided that its receipt            
          is not subject to <substantial limitations’ and there is no                 
          reason to suppose that it will be dishonored,”                              





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