- 6 - (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,”Page: Previous 1 2 3 4 5 6 7 8 Next
Last modified: May 25, 2011