dissenting: It seems to me that it is a cardinal principle of the income tax law that a man making his returns on a cash basis is liable to income tax upon only the income which he receives during the taxable year. Where a man has given away property the donee is taxable upon income which he receives on the gift. In 1937 the petitioner gave to his brother all of his right, title, and interest in and to a certain oil lease, together with impounded royalties. If he received taxable income upon any part of the impounded royalties it seems to me he received that income in 1937 — the year of the gift. If satisfaction from the making of the gift is to be treated as income, that satisfaction was realized by S. W. Anthony in 1937. He received nothing in 1940 either in the form of impounded royalties or in satisfaction for his 'gift. The amount received by the donee in 1940 is not logically the income of the donor. Would it be held that if the donor had died in 1938 and possibly the administration of the estate closed prior to 1940, that the estate derived taxable income in 1940 because it was in that year that the donee collected the impounded royalties ? Such a doctrine seems to me to do violence to sound principles of taxation.
It should be noted that in the instant case it was not known in 1937 what the amount of the impounded royalties belonging to S. W. Anthony was. It was not an account settled. No one received income from the impounded royalties until the account was settled, and that was not until 1940.
Estate of Bertha May Holmes, 1 T. C. 508 (C. C. A., 2d Cir.; petition for review dismissed Jan. 25, 1945), is cited as authority for the conclusion reached in the majority opinion. There the owner of certain shares in a building and loan association gave the shares away, together with certain credited accumulated dividends thereon, to her son and daughter fifteen days prior to the maturity date of the shares. The accumulated income was received by the donees shortly after the date of the gift and all within the same taxable year. We held that the donor was taxable on so much of the dividends as had been credited to the shares prior to the time of the gift. In support of our decision we cited Helvering v. Horst, 311 U. S. 112. See also Helvering v. Eubank, 311 U. S. 122. In the last named case it was held that a person who had earned the right to receive renewal commissions was taxable upon those renewal commissions even though before the date of the receipt of them such person had made a gift of his right to receive them to his wife.
I do not think that Estate of Bertha May Holmes, supra, and Helvering v. Horst, supra, are authority for holding that a donor is taxable upon the income of a gift in a year subsequent to the year of the gift; for the satisfaction for the gift came in the year in which the gift was made. It seems to me also that it is a far cry from the situation presented here to that presented in Helvering v. Eubank, supra; for under section 22 (a) of the Internal Revenue Code a man is taxable upon “gains, profits, and income derived from salaries, wages, or compensation for personal service, of whatever kind and in whatever form paid.”
In my opinion the amount received by the donee in 1940 was income taxable to him; it was the fruit garnered by him. Since S. W. Anthony received no part of the impounded royalties in 1940 or any satisfaction in 1940 from the gift made by him in 1937,1 think it is error to hold that he is taxable upon any part of the income received by the donee in 1940.
Aettndell, J., agrees with this dissent.