Tax Research - Constructive Receipt Essay

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FACTS: Adrian is a salesperson who represents several wholesale companies. On January 2, 2008, she received by mail a commission check from Ace Distributors in the amount of $10,000 that was dated December 31, 2007. Adrian is concerned about the year in which the amount of $10,000 is taxable. Although the check is dated 2007, she contends that it would have been unreasonable for her to drive 100 miles (one way) to the Ace offices on the eve of a holiday to collect her check. Further, Adrian maintains that even if she had made the trip to collect the check, by the time she returned home, the bank would have closed and she could not have deposited the check until January.
Does Adrian include the $10,000 on her 2007
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Working under the assumption that Adrian is a cash basis taxpayer, one can refer to Treasury Regulation sec. 1451-1(a), which states that under the cash receipts and disbursements method of accounting, such an amount is includible in gross income when actually or constructively received. With regards to constructive receipt, Treasury Regulation sec. 1451-2(a) states that income is constructively received by a taxpayer when 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 or restrictions. The question now is whether Adrian faced substantial limitations or restrictions as defined by the tax law. The regulation does not provided an example specifically addressing Adrian's situation that would allow us to reach a conclusion.

The tax courts provide us with a number of scenarios similar to the one faced by Adrian. In Kuhler v. Commissioner of Internal Revenue 18 T.C. 31 (1952) a taxpayer received a commission check on the evening of December 31, 1946, past banking hours, and reported its amount
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