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ROSENBERG v. UNITED STATES

No. 19707.

422 F.2d 341 (1970)

Mary ROSENBERG and David Rosenberg, Co-Executors of the Estate of Dan Rosenberg, and Mary Rosenberg, Appellants, v. UNITED STATES of America, Appellee.

United States Court of Appeals, Eighth Circuit.

February 25, 1970.

Attorney(s) appearing for the Case

Victor Packman, Clayton, Mo., for appellants.

William S. Estabrook, III, Atty., Dept. of Justice, Washington, D. C., for appellee; Johnnie M. Walters, Asst. Atty. Gen., Meyer Rothwacks and Thomas L. Stapleton, Attys., Dept. of Justice, Washington, D. C., Daniel Bartlett, Jr., U. S. Atty., St. Louis, Mo., and Daniel R. O'Neill, Asst. U. S. Atty., were with him on the brief.

Before GIBSON, LAY and BRIGHT, Circuit Judges.

PER CURIAM.

The central issue in this case presents a factual question: whether commissions not actually drawn upon until the year after they were earned constitute constructively received income in the year in which they were earned. Although the doctrine of constructive receipt is to be sparingly applied, its application is proper if the commissions were available to the taxpayer in the year earned. 26 C.F.R. § 1.451-2 (1969). In the instant case,

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