Taxes, Constructive Receipt, Structured Legal Fees, and Escrows
Robert W. Wood
Robert W. Wood is a tax lawyer with www.WoodLLP.com, and the author of numerous tax books including Taxation of Damage Awards & Settlement Payments (www.TaxInstitute.com). This discussion is not intended as legal advice.
Constructive receipt is a fundamental tax concept that can have a broad and frightening impact. According to the IRS, you have income for tax purposes when you have an unqualified, vested right to receive it. Asking for payment later doesn’t change that.1 The idea is to prevent taxpayers from deliberately manipulating their income.
The classic example is a bonus check available in December, but which the employee asks his or her employer to hold until January 1. Normal cash accounting suggests that the bonus is not income until paid. But the employer tried to pay in December, and made the check available. That makes it income in December, even though it is not collected until January.