dissenting: It seems to me incongruous to treat the concept of accrual accounting as a rule of law rather than a matter of practical business operation.1 By the determination of this deficiency respondent has succeeded at once in overturning petitioner’s longstanding and consistent accounting practice, and at the same time in losing money for the Treasury; and by our decision we are placing our stamp of approval on the result, if not on the procedure. Such a consequence would be bad enough if it were inevitable. But dealing with the question as an accounting proposition, or, for the matter of that, even as a legal question, it seems to me not only unnecessary but actually unsound.
Petitioner received rent under a long term lease which called for two types of payment. One was a specified amount due in advance on the tenth of each month. Petitioner did not accrue all of these payments at the time the lease was signed when theoretically both the obligation to pay in the future and the amount of the payments became fixed, cf. Fifth Street Store, 6 T. C. 664, but in accordance with what appears to be standard practice accrued the installments on its books and reported them on its returns as iñcome for the years during which they became due. See Leo M. Klein, 20 B. T. A. 1057; Oregon Terminals Co., 29 B. T. A. 1332; Marguerite Hyde Suffolk & Berks, 40 B. T. A. 1121; Jamaica Water Supply Co., 42 B. T. A. 359, 364, affd. (C. A. 2) 125 F. 2d 512, certiorari denied 316 U. S. 698. Kespondent has never made any objection to this aspect of the matter and in fact does not do so now. These amounts are not in dispute here.
In addition to the stipulated monthly rent, the tenant agreed to pay a certain percentage of his annual gross sales, to be due on or before the tenth of the first month in the following year. These payments also petitioner customarily and uniformly recorded on its books and reported as income on its tax returns as of the time they were due. But as to these payments respondent now asserts that petitioner’s books failed to reflect its income and that since the amount of the payment is susceptible of computation in the closing hours of the last day of the year, accrual theories require that they be taken up in petitioner’s income not when they became due but when they became ascertainable; and we are agreeing with him.
It is not necessary to say that all rent is accruable on its due date and neither before nor after. There are many proper methods of accrual accounting, and there may be arrangements and systems of accounting which would make other provisions for recording rental income appropriate or even imperative. But here it seems to me obvious that petitioner’s long-continued and consistent method of accounting has not distorted its income and over such a period of years as is covered by the lease could not do so. See Grand Central Public Market v. United States (S. D., Cal.), 22 F. Supp. 119, appeal dismissed (C. A. 9) 98 F. 2d 1023.
Under these circumstances respondent’s own regulations appear to require that petitioner be permitted to retain the system adopted by it. See New Orleans Cold Storage & Warehouse Co., 40 B. T. A. 121; Atlantic Coast Line R. R. Co., 4 T. C. 140. “* * * If the method of accounting regularly employed by [the taxpayer] in keeping his books clearly reflects his income, it is to be followed with respect to the time as of which items of gross income * * * are to be accounted for. * * * A method of accounting will not, however, be regarded as clearly reflecting income unless all items of gross income and all deductions are treated with reasonable consistency.” (Emphasis added.) Regulations 111, section 29.41-1,-2. Petitioner’s system treats the rental items, both fixed and percentage, as income when they become due, regardless of actual payment, and thus with complete, not to say reasonable, consistency. Since that method does not distort its income, I would conclude that its continued use, if not mandatory, is at least permissible under the regulations. Belt Ry. Co. of Chicago, 9 B. T. A. 304, 312, affirmed other issue (C. A. D. C.), 36 F. 2d 541.
United States v. Anderson, 269 U. S. 422, upon which the present opinion is predicated, does not support its conclusion and, if anything, looks in the opposite direction. There the munitions taxes which were the disputed item were actually accrued on the taxpayer’s books for the year 1916. The Supreme Court held that if the taxpayer’s actual method of accounting did not distort its income it was required to make its returns on the same basis, and report them as an expense of 1916. Applying that principle to this case the fact that petitioner accrued the amounts on its books as they became due and reported its income in exact accord with its proper bookkeeping practice, and the further fact that such a practice consistently followed does not distort its income, brings its actual situation more nearly within the facts and the language of the Anderson case.2
Such a conclusion would, of course, make it unnecessary to place the petitioner in the position of receiving an unrequested and inequitable windfall by excluding a whole year’s percentage rental from the taxable income of any year. From both conclusions I respectfully note my dissent.
TietjeNS, t/., agrees with this dissent.[Dissent] See footnote 2, infra.
“In making np Its income tax return for 1916, appellee deducted from gross Income aU the items appearing on its books as losses sustained and obligations and expenses incurred during the year, except that it omitted, from the return the items of munitions tax, likewise carried on its hooks, as an obligation or expense incurred or accrued in the year.
* * * * * * *
“* * * In this respect, for purposes of accounting and of ascertaining true income for a given accounting period, the munitions tax here in question did not stand on any different footing than other accrued expenses appearing on appellee’s hooks. In the economic and bookkeeping sense with which the statute and Treasury decision were concerned, the taxes had accrued. It should be noted that section 13 (d) makes nó use of the words' ‘accrue’ or ‘accrual’ but merely provides for a return upon the basis upon which the taxpayer’s accounts are kept, if it reflects income — which is precisely the return insisted upon by the government. We do not think that the Treasury decision contemplated a return on any other basis when it used the terms ‘accrued’ and ‘accrual’ and provided for the deduction by the taxpayer of items ‘accrued on their books.’ ” United States v. Anderson, supra, 423, 425. (Emphasis added.)