*26OPINION.
Murdock :There was a statutory provision during all of the years material hereto, which was specifically applicable to the reporting of income from employees’ trusts like the one in which this petitioner was a .participant. That provision was to the effect that the trust > itself was not taxable as a-trust, “but the amount actually distributed or made available to any distributee shall be taxable to him in the year in which -so distributed or made available to the extent that it exceeds the amounts paid in by him.” See section 165 of the Revenue Acts of 1934,1932, and 1928, and section 219 (f) of the Revenue Acts of 1926,1924, and 1921. There were some slight changes in the wording of this provision as it was continued through those acts, cf. Oscar A. Olstad, 32 B. T. A. 670, but the changes do not appear to be vital in so far as this proceeding is concerned. This conclusion on our part is confirmed by the fact that the petitioner makes no contention that .the changes are important. In fact, he never refers to the statutory provisions in his discussion of the case. He makes no claim and the facts do not show that there was ever a time when the petitioner was entitled to withdraw from the fund, as a partial withdrawal, an amount in excess of the amount which he had paid in. Thus it does not appear that he was ever entitled to withdraw any amount from the fund which would be taxable income to him under the provisions of the revenue acts above referred to unless his right to withdraw his entire interest in the fund made it so.
It is upon the latter right that the petitioner makes his argument. He contends that the full amount credited to his account in each prior year was constructively received by him prior to 1934 because, beginning in 1922, when he completed ten years of service, it was un-qualifiedly subject to his demand and could have been withdrawn by him to the very last penny without any obligation upon his part to return any of it, to pay any interest on it, or to do anything else in connection with it. There is no doubt that he had the right to withdraw his full credits. Assuming, for the purpose of this discussion, *27that he can invoke the doctrine of constructive receipt for his own benefit, nevertheless the facts fail to show that any portion of the amount now being taxed to him in 1934 was constructively' received by him in any prior year. The reason for this is that his right to withdraw his entire participation was given to him upon a condition. The condition was that if he withdrew from the fund he would cease to be a participant and could never become a participant again. The record clearly demonstrates that his right to continue to participate was a valuable one, the loss of which would have been a serious loss. It was unlike the ordinary investment; The company was annually making and was required to make substantial contributions to the credit of each participant based upon the amount of his deposits. Only by surrendering his right to further share in such contributions could the petitioner withdraw all of his participation from the fund. He had to surrender his entire right in what was obviously to him a very profitable and desirable opportunity as long as he could possibly remain a participant in it. It is difficult to conceive of a more important limitation or condition upon a right to receive money than the one which attached to the right of this petitioner.
The petitioner’s'" situation in prior years was somewhat like that of the owner of building and loan shades or of a life insurance policy where the cash surrender value thereof was in excess of the amount paid in by the holder. Yet, it has never been suggested that the excess of that cash surrender value would be income taxable under the doctrine of constructive receipt in the absence of actual surrender. There, as here, the money could be obtained only by surrendering the entire investment and the anticipated valuable future benefits which could be obtained only by continued participation.
Congress, in enacting section 219 (f) and section 165, above cited, relieved the participants in employees’ trusts of income tax until they had actually received their profits in cash or its equivalent. Prior to that time they might not have had any funds with which to pay the tax. Although the tax upon the entire profit at final distribution may be in excess of what the tax would have been if imposed upon the annual accretions, this circumstance is unimportant in view of the clear language of the statute. The petitioner here makes no contention that this was a stock subscription plan or that his receipt of stock instead of cash is any reason for relieving him of tax. Cf. Schaefer v. Bowers, 50 Fed. (2d) 689. The petitioner used the cash receipts method of reporting his income. None of the funds now being taxed to him were “made available” to him within the meaning of the statute at any time prior to 1934, when the actual distribution to him was made. We find no error in the determination of the Commissioner.
*28It becomes unnecessary, in view of what has been said above, to decide whether this taxpayer has any right to invoke the doctrine of constructive receipt. He is on the cash basis and he did not report the income in any prior year. The doctrine of constructive receipt is usually stated as follows: A taxpayer, reporting his income on the basis of cash receipts, may not deny the receipt of income and escape tax on it where it is unqualifiedly subject to his demand. It is in the nature of an estoppel and certainly one may not estop himself to his own advantage. Cf. Asher v. Welch, (U. S. Dist. Ct., Dist. Calif., S. Div., May 24, 1938). We held in the case of Alice H. Moran, Executrix, 26 B. T. A. 1154, that a taxpayer on the cash basis who has consistently followed the pra'ctice over a long period of years of not returning certain income because he did not receive it, may not invoke the doctrine of constructive receipt to escape tax on the income in the year in which it is actually received. The case was affirmed, 61 Fed. (2d) 601. We said in Southern Pacific Co., 21 B. T. A. 990, that the omission of the income in prior years was a substantial matter which deprived the Government of the revenue which it might otherwise have collected, and the taxpayer could not avoid the natural results of the omission and seek justification for the avoidance under a doctrine at variance with the facts. It likewise becomes unnecessary to consider the probative value and effect of the statement attached to the petitioner’s return in which he attempted to show that he would not have had to pay any tax in prior years even if he had reported the income in those years.
Reviewed by the Board.
Decision will he entered for the respondent.