Valley Tractor & Equipment Co. v. Commissioner

Opper,

concurring: The stockholders having actually received their dividend checks prior to the end of the taxable year, there would seem to be no question that they were liable as individuals for the income tax thereon. Their failure to call for the funds placed at their disposal would not relieve them from that liability under the doctrine of constructive receipt. Hiram C. Wilson, 17 B. T. A. 976; Harvey H. Ostenberg et al., Administrators, 17 B. T. A. 738, 745; cf. Avery v. Commissioner, 292 U. S. 210; Elvira Scatena, 32 B. T. A. 675, 679; affd. (C. C. A., 9th Cir.), 85 Fed. (2d) 729. It appears from the statement of facts that the stockholders recognized this liability and included the dividends in their individual income for that year. These seem to me the strongest reasons for granting the dividends paid credit to the petitioner corporation, since the basic pur*316pose of sections 14 and 27, Revenue Act of 1936, was fulfilled by the procedure adopted. See Foley Securities Corporation, 38 B. T. A. 1036; affd., 106 Fed. (2d) 731. The dividend being taxable to the shareholders, credit for its payment should be available to the corporation.