OPINION.
Withet, Judge:The partnership reported its income for 1947 on the cash basis. The Commissioner has recomputed its income for that year on the accrual basis. In so doing he has included in income that portion of partnership accounts receivable which remained uncollected at the close of 1946 and at the beginning of 1947. Respondent claims the authority for so doing under E. S. Iley, 19 T. C. 631, and William Hardy, Inc. v. Commissioner, (C. A. 2, 1936) 82 F. 2d 249.
We do not consider the fact that the partnership may have kept its business records on the wrong basis to be particularly pertinent to the issue. Regardless of the method of accounting it used in keeping its business records, the fact is apparent from the evidence in this case that it was required under Regulations 111, section 29.41-2, to compute and report its income on the accrual basis, for petitioners admit that the purchase and sale of merchandise was an income producing factor in the business. The partnership did not compute its income on the accrual basis and, therefore, failed to report its true income in accordance with the cited regulation. It is also apparent from the record that the partnership did not report its true income under the regulation for several years prior to 1947, as its method of bookkeeping and reporting income has been consistent since its formation in 1944 and the purchase and sale of merchandise has been an income producing factor since that date.
There is no doubt here concerning the fact that the opening accounts receivable sought to be included in the 1947 income of the partnership by respondent were, under the proper accrual method of accounting, income to it in the taxable year 1946 or prior years. In Caldwell v. Commissioner, 202 F. 2d 112, and Commissioner v. Dwyer, 203 F. 2d 522, respectively, the respondent’ was denied the right to include as taxable income in a tax year that which was actually income in a prior year. In John W. Commons, 20 T. C. 900, this Court held income of a prior year, under a proper accounting method, not to be includible in the income of a later year. Following those cases we here hold that the respondent may not include the closing accounts receivable for the year 1946 as opening accounts receivable for the year 1947.
In E. S. Iley, supra, in a factual situation which is indistinguishable in principle from the one at bar, this Court came to a contrary decision. It is true that in the Iley case the taxpayer kept his books and records upon the cash basis of accounting but that fact alone does not distinguish that case. The question of the Commissioner’s authority to tax in the year of changeover that which was properly income for a prior year was there squarely before the Court and our decision there is contrary to Caldwell, Dwyer, and Commons, supra. We decline henceforth to follow the Iley decision. William Hardy, Inc. v. Commissioner, supra, relied on by respondent, has been expressly overruled by the Court of Appeals for the Second Circuit in Commissioner v. Dwyer, supra.
Reviewed by the Court.
Decisions will be entered, urnder Bule SO.
TueneR, J., dissents.