dissenting: While I am unable to agree with much that has been said in the majority opinion, I feel it necessary to express my views only as to the question of whether or not there should be included in the income of the petitioners, for the year 1918, any part of the excess profits from the season’s business. This question is twofold; First, did the petitioners derive income, and second, when did they derive such income, if at all? It seems to me that as long as the Department of Agriculture, or any other branch of the Federal Government, continues to press its claim against the partnership of Brown & Adams, for the profits from the 1918 wool clip in excess of the 5 per cent provided for in the Government Wool Kegulations, it is error for another Department of the same Government to propose to tax the partnership on such excess profits as if they were unqualifiedly the profits and property of the partnership. To sustain the respondent would be to place the Government in an inconsistent position. See R. Hoe & Co. v. Commissioner, 30 Fed. (2d) 630.
The income and profits taxes are levied on “ net income,” which Congress has defined as meaning “ gross income as defined in section 213, less the deductions allowed by section 214.” See sections 210 to 214, inclusive, and 320 (a) (3) of the Revenue Act of 1918. Section 212 further provides that “the net income shall be computed upon the basis of the taxpayer’s annual accounting period (fiscal year or calendar year, as the case may be) in accordance with the method of accounting regularly employed in keeping the books of such taxpayer * * and section 200 provides in part that “ the term ‘ paid,’’ for the purposes of the deductions and credits under this title, means ‘ paid or accrued ’ or ‘ paid or incurred,’ and the terms ‘ paid or incurred ’ and ‘ paid or accrued ’ shall be construed according to the method of accounting upon the basis of which the net income is computed under section 212.” In Sanford & Brooks Co., 11 B. T. A. 452, we said, at page 458:
Under our system of Federal taxation, an accounting period for one year has been prescribed as the basis for reporting income for tax purposes, and each *872taxable period stands alone with items oí income and deductions determined in the light of events and circumstances transpiring within that year.
The problem thus presented in the first issue is to determine whether upon the facts we have a question of “ gross income ” or a question of “ deductions ” and since the partnership kept its books and rendered its returns upon the accrual basis of accounting, whether the “ gross income ” or “ deductions,” as the case may be, “ accrued ” during the taxable year 1918.
The theory upon which the respondent supports his determination is not exactly clear. In his deficiency letters, he states that the excess profits in question were rightfully included in the income of the partnership for 1918 “ pending a decision by the District Court of Boston.” In other words, according to the statements made in the deficiency letters, if the final result of the litigation now pending before the District Court should be adverse to the partnership, the respondent would propose to exclude the excess profits in question from the income of the partnership for 1918. Such action in view of the fact that petitions have been filed with this Board and section 284(d) of the Revenue Act of 1926 could not be legally justified. In his brief, however, the respondent argues that the question is one of deductions from gross income and that the partnership is entitled to no deduction on account of the excess profits unless and until the case now pending before the District Court for the District of Massachusetts is finally decided or settled adversely to the petitioner, and cites Malleable Iron Range Co. v. United States, 62 Ct. Cls. 425; Consolidated Tea Co. v. Bowers, 19 Fed. (2d) 382; Farmers National Bank of Rome, 6 B. T. A. 1036; and Frank J. Jewell, 6 B. T. A. 1040. This last theory takes it for granted that all of the profits made in connection with the 1918 wool clip should be treated as the absolute property and hence the income of the partnership, notwithstanding the latter’s agreement with the War Industries Board to abide by the Wool Regulations of that Board, which provided that all profits in excess of 5 per cent “ shall be disposed of as the Government decides.” It should first be determined whether such excess profits or any portion thereof are in fact and in law a part of the gross income of the partnership for the taxable year 1918.
The question is whether any portion of the excess profits “ accrued ” to the partnership as gross income during 1918.
In Sowers Manufacturing Co., 16 B. T. A. 268, we said:
The general rule is that a taxpayer reporting on an accrual basis must report items of income at the time they accrue, without regard to the time they are paid. Appeal of Schock, 1 B. T. A. 528; Appeal of Butler, 1 B. T. A. 1105; and Appeal of Harris, 2 B. T. A. 933. A taxpayer who keeps its books *873and reports its income on the accrual basis is not, however, required to report as income that which in all probability it may never receive. Great Northern Railway Co., 8 B. T. A. 225, 265.
And in Peninsula Shipbuilding Co., 9 B. T. A. 1189, we said at page 203:
* * * In numerous appeals the Board has held that disputed and contested claims not set up on the books of account of taxpayers are not accruable items of income or deductions therefrom until the year of actual settlement.
The facts and circumstances surrounding the excess profits at the close of 1918 may be summarized as follows: The partnership had entered into an agreement with the War Industries Board to abide by their regulations relative to the 1918 wool clip in consideration that the partnership be given a permit to act as a central wool dealer during the war. The profiteering clause of the regulations contained a provision that all profits “ in excess of 5 per cent on the season’s business * * * shall be disposed of as the Government decides.” At no time during 1918 did the partnership question the validitj? of such regulations. It kept its accounts in accordance with the wool regulations and at the close of the season’s business in 1919, it set up in a separate account, captioned “ Whom it May Concern — War Industries Board Wool Regulations,” what it believed to be the profits in excess of 5 per cent. Toward the close of 1919 the partnership still remained ready to turn over the excess profits to the Government for return to the growers, provided it be returned to the gro Avers on some basis other than the pro rata basis. It'was not until the Government refused to use some basis other than the pro rata basis that the partnership ever questioned the validity of the Government’s regulations or refused to pay over to the Government the excess profits in question. The War Industries Board and the Department of Agriculture have at all times contended that the partnership had no rights Avhatever in the 1918 wool profits in excess of the 5 per cent provided for in the regulations. In the suit which the United States has filed against the partners in the District Court of Boston and which suit is still pending, the United States is claiming the excess profits in question as its own.
Under the circumstances as set forth above, I do not think any part of the excess profits in question can be said to have accrued to the partnership as income during the year 1918. During that year, both the partnership and the War Industries Board considered such profits as the property of the Board and not the partnership. In Sterling Coal Co., Ltd., 8 B. T. A. 549, at page 553, the Board said:
Taxes should be computed on an annual basis and on the basis of facts knoAA-n or ascertainable during the taxable years.
The fact that the partnership had possession of such profits is not controlling. See Frederick McLean Bugher et al., 9 B. T. A. 1155, *874and Ansco Photo Products, Inc. v. Clark, 34 Fed. (2d) 568, decided June 20, 1929.
A somewhat similar situation exists in connection with the proper treatment for income-tax.purposes of the liability for “recapture” amounts as determined by the Interstate Commerce Commission in accordance with the provisions of section 15 (a) (6) of the Interstate Commerce Act, as amended by the Transportation Act (41 Stat. 489) which provides in part as follows:
If, under the provisions of this section, any carrier receives for any year a net railway operating income in excess of 6 per centum of the value of the railway property held for and used by it in the service of transportation, one-half of such excess shall be placed in a reserve fund established and maintained by such carrier, and the remaining one-half thereof shall, within the first four months following the close of the period for which such computation is made, he recoverable by and paid to the commission for the purpose of establishing and maintaining a general railroad contingent fund as hereinafter described. * * * (Italics ours.)
At the time the petitions here under consideration were filed, the rulings of the respondent provided that all of the operating income of the railroads in excess of 6 per cent should be returned as income in the first instance and a deduction allowed later for any amount paid to the Commission. See O. D. 989 (5 C. B. 219) and I. T. 2300 (V-2 C. B. 164).- The respondent in a recent decision rendered more than two years after the petitions here under consideration were filed, reversed his two prior rulings and held that it was improper to include in the gross income of the railroads the one-half of the profits in excess of 6 per cent which the railroads were required to pay to the Commission. See G. C. M. 4606 (VII-2 C. B. 256) which is quoted in part as follows:
In view of tlie foregoing, it seems that the one-half of the net railway operating income in excess of 6 per cent of the value of railway property held for and used in the service of transportation, which is recoverable by and required to be paid to the Interstate Commerce Commission, never in fact forms a part of the railroad company's gross income. That part of the earnings which is required to be paid over to the Interstate Commerce Commission apparently belongs to the United States at the time it is earned. * * * It is improper therefore to treat the liability for “ recapture ” amounts as an ordinary and necessary business expense which is deductible in computing net income, as was held in I. T. 2300 and Office Decision 989. The proper treatment is to exclude such amounts from gross income. (Italics ours.)
The statements quoted above are equally applicable to the facts in the instant case. I am, therefore, of the opinion that the respondent erred in including in the income of the partnership of Brown & Adams the amount of $275,345.12 as representing income of the partnership for the taxable year 1918.
Love and Black agree with this dissent.Report adopted and dissent filed during Mr. Green’s term or office.