*1134OPINION.
GREen:The question to be decided in this appeal is the year or years in which petitioner is entitled to a deduction, or deductions, as the result of the liability incurred, if any, on account of the death of Emery. The petitioner contends, first, that it should be allowed to take a loss over a period of years, or, second, that it be permitted to file an amended return for the year 1920 and take the entire loss in that year. The Commissioner contends that the loss is deductible only in the year 1924, which was the year in which the final settlement was made.
We are of the opinion that the liability resulting from the death of Emery was not such that the estimated amount thereof could be accrued in the year 1920. The liability was for a tort and had in it none of the elements of a contract liability. There was, and could be, no accurate measure of the damages until the jury brought in its verdict, and even then the verdict of the jury would be subject to the vicissitudes of motions for new trial, etc., and an appeal. The petitioner persistently denied its liability and vigorously defended the damage suit. In a situation where it is doubtful whether there is a liability and where the amount, if there be a liability, is wholly unascertainable, there can be no accrual.
The Appeal of Producers Fuel Co., 1 B. T. A. 202, was not based upon a comparable set of facts. There the liability was based upon a contract which the taxpayer had deliberately broken. There the taxpayer admitted its liability and entered into negotiations for the settlement thereof before the close of the taxable year. There was no doubt as to the existence of the liability, and only the amount to be paid remained to be determined. The liability for which the taxpayer here seeks to set up a reserve was not a fixed and existing liability in 1920 or 1921, and accordingly the reserve set up can not be allowed as a deduction in the computation of income. See also the recent decision of the Court of Claims in the case of Malleable Iron Range Co. v. United States, 62 Ct. Cl. 425.
Judgment for the Commissioner.