dissenting: I must dissent from the holding of the majority for the reason that I believe its conclusion does fundamental damage- to long-standing precepts of accrual basis reporting of income.
The parties are 'agreed that for present purposes the petitioner is to be treated as a taxpayer which keeps its books and reports its income on the accrual basis of accounting. Under the method of accounting employed by petitioner it accrued on its books for the year of a given sale the selling price of the vehicle sold by it on the deferred payment plan and also the cost of insurance and the filing fees incurred by it in making such a sale. However, the finance charge made by petitioner and involved in such sale was not similarly accrued but was credited by petitioner to a deferred income account on its books. At the end of the year of the sale the petitioner made a charge to the deferred income account of an 'amount computed by it as the portion of the finance charge allocable to such year and accrued on its books and reported as income for the year the amount of such charge. A similar method was employed by petitioner for subsequent taxable years until the full amount of the finance charge had been accrued on its books and reported as income. Since the petitioner did not elect to report income by the use of the installment method as provided by section 453 of the Code of 1954 and since there is no controversy as to the correctness of the petitioner’s accrual of the selling price of the vehicle and the petitioner’s expenditures for insurance and filing fees in the year of the sale of a vehicle, it was incumbent on the petitioner to establish a factual basis that would warrant its action in not also accruing on its books in the year of the sale the full amount of the finance charge instead of crediting the amount to a deferred income account. In my opinion the petitioner has failed to establish such basis. The showing that the amount of the finance charge was based on a credit report on each particular customer reflecting the factors usually considered in determining whether a credit sale is to be made and, if so, the proper amount thereof, does not aid the petitioner. Such a showing would equally support the conclusion that the finance charge was merely a segregated portion of the selling price charged because of the risk and the costs of administrative handling involved in- making a credit sale to the particular customer on a deferred payment plan.
Accrual basis taxpayers are axiomatically required to report income on the basis of the legal liability of others to pay where the amount of the liability can be determined with reasonable accuracy, not, as the majority opinion holds, an amount which is absolutely -fixed. Continental Tie & L. Co. v. United States, 286 U.S. 290 (1932); Cappel Mouse Furnishing Co. v. United States, 244 F. 2d 525 (C.A. 6, 1957); George K. Herman Chevrolet, Inc., 39 T.C. 846 (1963); sec. 1.446-1(c) (1) (ii), Income Tax Kegs. The creation of the liability fixes the time of accrual which in this case is the execution and delivery of the promissory note of the payor coupled with delivery to bim of the merchandise, the purchase price of which is represented by the note. In this case there is no condition existing precedent to the fixing of such liability and accrual. The majority opinion wrongly pivots decision upon the happening of a condition which does not exist at the time of accrual and can only occur subsequent thereto if at all. See Smith v. Commissioner, 324 F. 2d 725 (C.A. 9, 1963), affirming a Memorandum Opinion of this Court; William M. Davey, 30 B.T.A. 837 (1934), petition for review dismissed 88 F. 2d 1008 (C.A. 9, 1937). This -does violence to long-established principles set forth in such cases as Spring City Co. v. Commissioner, 292 U.S. 182 (1934), wherein the Supreme Court places the issue here presented in proper perspective in the following language:
Keeping accounts and. making returns on the accrual basis, as distinguished from the cash basis, import that it is the right to receive and not the actual receipt that determines the inclusion of the amount in gross income. When the right to receive an amount becomes fixed, the right accrues. When a merchandising concern makes sales, its inventory is reduced and a claim for the purchase price arises. Article 35 of Regulations 45 under the Revenue Act of 1918 provided: “In the case of a manufacturing, merchandising, or mining business ‘gross income’ means the total sales, less the cost of goods sold, plus any income from investments and from incidental or outside operations or sources.”
On an accrual basis, the “total sales,” to which the regulation refers, are manifestly the accounts receivable arising from the sales, and these accounts receivable, less the cost of the goods sold, figure in the statement of gross income. If such accounts receivable become uncollectible, in whole or part, the question is one of the deduction which may be taken according to the applicable statute. * * * [Emphasis supplied.]
The right of an accrual basis taxpayer to deduct amounts of cash discounts uncollected because of early payment of the purchase price has long been established. American Cigar Co., 21 B.T.A. 464 (1930), affd. 66 F. 2d 425 (C.A. 2,1933), certiorari denied 290 U.S. 699 (1933). The amount uncollectable in this case because of early payment is in principle the same as the rebate or discount in cash discount cases and it seems to me the majority opinion, if correct, has the necessary result of overruling such cases.
The concept of “earned income” heavily stressed in the majority opinion was considered and given short shrift in Brown v. Helvering, 291 U.S. 193 (1934). Once amounts become income because of the method of accounting and reporting of the taxpayer, their taxability may not be deferred on the grounds they have not been earned. Brown v. Helvering, supra.
In Commissioner v. Hansen, 360 U.S. 446 (1959), the Supreme Court said:
The principles governing the accrual and reporting of income by taxpayers who employ the accrual basis have long been settled by the opinions of this Court. Security Flour Mills Co. v. Commissioner, 321 U.S. 281; Spring City Foundry Co. v. Commissioner, 292 U.S. 182; Brown v. Helvering, 291 U.S. 193.
By the foregoing statement of the Court it has shown its regard for the cases mentioned therein and the principles settled by those cases. Surely here we should show like regard for those cases and the principles established therein by applying the principles of Brown v. Helvering, supra, and Spring City Co. v. Commissioner, supra, which are particularly applicable.
The majority merely conjectures as to whether the involved “finance charge” is, in whole or in part, interest which of course would be reportable only as ratably accrued under the facts of this case. The burden to prove this fact, however, was clearly that of the petitioner. The burden was such as to leave no room for conjecture. Such facts as are proven coincide as well with the fixing of a finance charge on the basis of risk and the cost of administrative handling as upon an interest concept. Indeed, it is noted that interest is not the subject of any of the written obligations herein nor is it mentioned in the State statute referred to in the majority opinion. Both sources refer to the amount to be credited to the purchaser as a rebate or refund. To me this language presupposes payment or accrual to the seller from which an amount is repaid or credited to the purchaser.
Decision should be entered for respondent.
Tietjens, PegRCE, and Mulkoney, Jagree with this dissent.