concurring: It would be idle to suggest that the rules to be followed by taxpayers in attempting to account for net income to the satisfaction of the Tax Court are either clear or consistent. In Pacific Grape Products Co., 17 T.C. 1097, revd. (C.A. 9) 219 F. 2d. 862, that petitioner’s customers had contracted to buy and petitioner had billed them for its products as of the end of the current year. The amounts so established as due to petitioner from its customers were accrued as income by it in accordance with its long-established accounting practice. Cf. Heer-Andres Investment Co., 17 T.C. 786. But we held that this was incorrect, on the theory, in effect, that the goods not yet having been shipped, the quid pro quo for which the obligation was undertaken had not yet been performed. Here, on the other hand, a long-established accounting practice, which accomplishes in practical effect what we required in Pacific Grape Products Co., supra, is likewise being disapproved.
Again, in Atlantic Coast Line Railroad Co., 4 T.C. 140, we held that a monthly accrual of an annual tax consistently adhered to should not be disturbed even though some of the months would fall into the following year. There (p. 151) we quoted with approval from Commissioner v. Schock, Gusmer & Co., (C.A. 3) 137 F. 2d 750—
that both of the New Jersey taxes under consideration would in the normal course be treated as part of such overhead expense, not for the year m which they were assessed but for the year for which they were assessed. And if a taxpayer kept his books on a monthly accrual basis as the taxpayer did here, he would normally and naturally accrue his state property taxes in twelve equal monthly installments.
This uncertainty and capriciousness in what should be a rational and purely practical area is not alleviated by the fact that Automobile Club of Michigan v. Commissioner, 353 U.S. 180, was decided as it was by only 5 of the 9 justices, and one cannot but be struck by the aptness of the statement by Mr. Justice Harlan, speaking for 3 dissenting justices, that: “[T]he Commissioner does not deny — as, indeed, lie could not — that the method of accounting used by the taxpayer reflects its net earnings with considerably greater accuracy than the method he proposes.”
If we were a free agent I would accordingly dissent from any conclusion that we should disturb the taxpayer’s consistent practice in the absence of more convincing evidence than we have that this would result in any real, or at least avoidable, distortion of income over the long term.
But the question has already been passed on. Automobile Club of Michigan v. Commissioner, supra. I see no possible ground for distinguishing the method of accounting used by petitioner from that employed by the Automobile Club of Michigan. Furthermore, our decision in that case, 20 T.C. 1033, has been affirmed by the Court of Appeals for the Sixth Circuit, 230 F. 2d 585. The implication, at least, is that there is a conflict between the affirming opinion and Bressner Radio, Inc. v. Commissioner, (C.A. 2) 267 F. 2d 520, reversing 28 T.C. 378, decided in the circuit to which this case will go on appeal.1
But I disagree with my brother Pierce that for this reason we should follow the latter circuit. It seems to me, as a unified and integrated administrative court, the Tax Court is obligated by the geographical uniformity provisions of the Constitution, article I, section 8, clause 1, Flint v. Stone Tracy Co., 220 U.S. 107, to decide identical questions the same way regardless of where in the United States the taxpayer happens to reside. To say that a corporation doing business in Michigan shall be treated in exactly the opposite way, under the same circumstances and under identical tax provisions, from a corporation doing business in New York strikes me as a position which the Tax Court should not be called upon to attempt to defend.
I accordingly concur in the result on the authority of the Automobile Club of Michigan v. Commissioner, supra.
“The Commissioner urges that in any event Automobile Club of Michigan v. Commissioner, supra, establishes the applicability of the so-called ‘claim of right’ doctrine to disallow deferrals of these unearned receipts. While this was true of the decision in the Tax Court * * * and apparently of the decision in the Court of Appeals * *