                        T.C. Memo. 2002-281



                      UNITED STATES TAX COURT



                CHRIS ALAN ROBERTS, Petitioner v.
          COMMISSIONER OF INTERNAL REVENUE, Respondent



     Docket No. 11836-00.             Filed November 13, 2002.



     Chris Alan Roberts, pro se.

     Ron S. Chun, for respondent.



             MEMORANDUM FINDINGS OF FACT AND OPINION

     GERBER, Judge:   Respondent determined a deficiency in

petitioner’s 1997 Federal income tax of $9,680 and an accuracy-
                               - 2 -

related penalty under section 6662 of $941.1    After concessions,2

the sole issue remaining for our consideration is whether

petitioner constructively received $24,867 of income in the 1997

taxable year.

                         FINDINGS OF FACT3

     At the time his petition was filed, petitioner, Chris Alan

Roberts, resided in Hawthorne, California.     On July 10, 1997,

petitioner directed to himself a lump-sum distribution of his

vested benefits in the Champion Transportation Services Inc.

Profit Sharing and 401(k) Plan (the Plan).     Six days later, on

July 16, 1997, petitioner was sentenced by a court to confinement

in an alcohol rehabilitation center (Center) in Warm Springs,

California.   Although petitioner was not permitted to leave the

Center, he had access to a telephone.   Throughout petitioner’s

rehabilitation period, an acquaintance resided at petitioner’s

Hawthorne residence.




     1
       Unless otherwise indicted, all section references are to
the Internal Revenue Code in effect for the taxable periods under
consideration, and all Rule references are to the Tax Court Rules
of Practice and Procedure.
     2
       Petitioner conceded $661 of gambling income in 1997 and
the $941 sec. 6662 negligence penalty.
     3
       The parties’ stipulation of facts is incorporated by
reference.
                               - 3 -

     During August 1997, while petitioner was still admitted in

the Center, a $19,893.904 distribution check was received from

the Plan at petitioner’s Hawthorne residence.    The distribution

was received in the form of a cashier’s check.

     On November 13, 1997, petitioner was released from the

Center and concurrently reconfined in the Los Angeles county jail

to serve the remainder of his sentence.    Petitioner was released

from jail in February 1998 and during May of that year he cashed

the $19,893.90 distribution check.     Petitioner did not report the

distribution as income on his 1997 Federal income tax return.

                              OPINION

     The question we consider is whether petitioner

constructively received the $24,867.37 distribution during his

1997 tax year.   Section 451(a) provides the general rule that

“any item of gross income shall be included in the gross income

for the taxable year in which received by the taxpayer, unless,

under the method of accounting used in computing taxable income,

such amount is to be properly accounted for as of a different

period.”   Petitioner, who reports his income using the cash

method, must report income in the year it is actually or

constructively received.   See sec. 1.451-1(a), Income Tax Regs.




     4
       Respondent determined that the gross distribution of
$24,867.37 was unreported income. The net distribution, after
withholding $4,973.47 for Federal tax, was $19,893.90.
                               - 4 -

     Petitioner argues that, despite receipt of the distribution

check at his residence during July 1997, he was unable to “apply”

or cash it until May 1998 following his release from prison.   On

that basis, petitioner contends that the 401(k) distribution

should not be included in income for 1997.    Conversely,

respondent argues that petitioner actually or constructively

received income based on the receipt of the distribution check at

petitioner’s residence during July 1997.    To prevail, petitioner

must show that the distribution should not be recognized in his

1997 income.5   Rule 142(a).

     Income, although not actually reduced to a taxpayer’s

possession, is constructively received during the taxable year it

is (1) credited to a taxpayer’s account, (2) set apart for a

taxpayer, or (3) otherwise made available to the taxpayer.

However, income is not constructively received if the taxpayer’s

control of the income is subject to substantial limitations or

restrictions.   See sec. 1.451-2(a), Income Tax Regs.; see also

Ames v. Commissioner, 112 T.C. 104 (1999); Childs v.

Commissioner, 103 T.C. 634 (1994).     Further, for taxation

purposes income is received or realized “when it is made subject

to the will and control of the taxpayer and can be, except for

his own action or inaction, reduced to actual possession”.


     5
       While the examination commenced after July 22, 1998,
petitioner does not meet the burden shifting requirements of sec.
7491(a).
                                 - 5 -

Furstenberg v. Commissioner, 83 T.C. 755, 791 (1984) (citing

Loose v. United States, 74 F.2d 147, 150 (8th Cir. 1934)).

     We hold that the distribution income was available to

petitioner and, except for his own inaction while in alcohol

rehabilitation, was subject to his will and control in 1997.

Despite his incarceration, petitioner had the ability to exercise

dominion and control over the distribution check.       Petitioner’s

incarceration was not a sufficient impediment to his control over

the check that was received at his residence during 1997.       He had

access to a telephone, and there were individuals who could have

assisted petitioner in cashing the check.       The fact that the

distribution was made in the form of a cashier’s check ensured

that funds were set aside and available for petitioner.       Other

than his inaction, petitioner did not show or argue that there

were any other limitations or restrictions on his control over

the distribution check.   Accordingly, we hold that the

distribution income was constructively received by petitioner in

1997 and was includable in petitioner’s income for that year.

     To reflect the foregoing,

                                         Decision will be entered

                                 for respondent.
