opinion.
Opper:Respondent determined the following deficiencies in petitioners’ income tax liability for the year 1936:
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The single issue in each proceeding is whether a dividend, declared during the tax year, is taxable to petitioners who are on the accrual basis. All the facts in each proceeding have been stipulated and as so stipulated are hereby adopted as our findings. The stipulation in its entirety is as follows:
1. The Petitioner,, Tar Products Corporation, .was incorporated under the laws of the State of Rhode Island on July 2, • 1920, with its principal office at the Industrial Trust Building, Providence, Rhode Island, but with its general office in the Koppers Building, Pittsburgh, Pennsylvania. The returns for the year here in question were filed with the Collector of Internal Revenue for the 23rd District of Pennsylvania.
*10342. On December 1, 1936, the- Petitioner owned 57,940 shares of common stock of Brooklyn Union Gas Company, a domestic corporation. On October 22, 1936, the said Brooklyn Union Gas Company declared a cash dividend of 75 cents a share, payable on January 2, 1937, to stockholders of record at the close of business on December 1, 1936.
3. The total dividend payable on the. said 57,940 shares of common stock on January 2, 1937, amounted to $43,455, and the dividend check was delivered to the general post office at Brooklyn, New York on December 31, 1936, for delivery to the stockholder on January 2, 1937, and was actually received on January 2, 1937, at the petitioner’s principal office in Providence, Rhode Island.
4. On December 22, 1936, the Petitioner transferred the foregoing common stock and other property to Esmont Company, a Delaware corporation, for all of its capital stock.1
5. The said dividend of $43,455 was reported as 1937 income by Esmont Company and taxes paid thereon. Said taxes so paid have neither been credited nor refunded by the Respondent.
6. The Respondent, in determining the deficiency, added the said dividend to the taxpayer’s 1936 income.
7. At all times material, the taxpayer kept its books and made its tax returns on the accrual basis of accounting.
This proceeding was originally determined by a memorandum opinion, but the form which the disposition of the matter now takes makes appropriate some amplification of what was there said.
The case was designed to raise a specific question. Counsel in drafting the stipulation “knew what the legal question, the sharp legal issue was and we attempted to frame the issue consistent with the facts so that there would be no mistake about that.”2 The question, stated in terms of petitioners’ contention, is “that dividends are income only when the cash or. other properties are un-qualifiedly made subject to the demands of the stockholder, irrespective of the method of accounting; and that this rule is adopted as an exception to both the accrual and cash bases.”3
Respondent’s regulations contain a provision of long standing that “A taxable distribution made by a corporation to its shareholders shall be included in the gross income of the distributees when the cash or other property is unqualifiedly made subject to their demands.” Regulations 94, article 115-1. It is this statement upon which petitioner relies. The regulation was apparently inspired by Revenue Act of 1921, section 201 (e).4 But both statute and regulation show that they are statements of the constructive receipt doctrine *1035obviously limited to cash, basis accounting. In Cecil Q. Adams, 20 B. T. A. 248, 245, this Board had occasion to review the legislative history of section 201 (e). It said in referring to the background for the failure to include a similar provision in the 1924 Act:
* * * The report of the Ways and Means Committee and that of the Finance Committee state that this broad provision was inserted in place of the narrow one contained in section 201 (e) of the Revenue Act of 1921, and that it is the rule which would be followed without an express statutory provision. But the sentence was stricken from the bill by an amendment and the House Managers made this comment:
Amendment No. 43. The House bill provided that items of gross income should be considered to be received in the taxable year in which they are unqualifiedly made subject to the demands of the taxpayer. This provision was designed to require dividends, bond interests, and salaries, such as drawing accounts, to be included in income when subject to demand by the taxpayer even though not actually received in cash by him. Since this is the rule which is and should be followed in such cases in the absence of a statutory provision, the Senate amendment strikes out the provision and the House recedes.
See also Mary Miller Braxton, 22 B. T. A. 128.
Confirmation of a similar conclusion as to the regulations appears from related provisions, particularly article 41-2, providing “A method of accounting will not, however, be regarded as clearly reflecting income unless all items of gross income and all deductions are treated with reasonable consistency. * * * A taxpayer is deemed to have received items of gross income which have been credited to or set apart for him without restriction”; and article 42-3, entitled “Examples Of Constructive Keceipt”, which includes the statement that “Dividends on corporate stock are subject to tax when unquali-fiedly made subject to the demand of the shareholder.”
We think it evident therefore that these references to dividends were not intended to distinguish that form of income from others such as interest and drawing accounts, but merely to give effect to the recognized principle of constructive receipt. That doctrine can have no application to an accrual basis taxpayer whose liability to tax results not from turning his back upon income which he can receive for the asking, John A. Brander, 3 B. T. A. 231, but from the right to receive the income regardless of its immediate availability. Spring City Foundry Co. v. Commissioner, 292 U. S. 182. “The doctrine of constructive, receipt here involved implies complete dominion of the property in question and therefore goes far beyond the mere accrual of the right to such property.” Cox Motor Sales Co., 42 B. T. A. 192. “Unless this doctrine of constructive receipt is kept within the penumbra of actual receipt it will invade the field, of accrual accounting, and this should not be permitted.” I. M. Cowell, 18 B. T. A. 997.
*1036We are accordingly of the opinion that the regulation upon which petitioners place exclusive reliance is without relevance to the present facts. It does not alter the result that to a taxpayer “on the accrual basis dividends will be taxable ordinarily in the year in which they are declared”, Mertens “Law of Federal Income Taxation”, 1939 Cumulative Supplement, 248 (note), on the theory that income is accruable for tax purposes when the right thereto becomes fixed, Archer Maynard Campbell, 6 B. T. A. 60, and that dividends by their declaration become a corporate liability, Helvering v. McGlue's Estate (C. C. A., 4th Cir.), 119 Fed. (2d) 167; Estate of Lewis Cass Ledyard, Jr., 44 B. T. A. 1056, 1066, citing Archer Maynard Campbell, supra; at least under the apparently applicable New York law. Estate of Henry W. Putnam, 45 B. T. A. 517. Certainly we can not say that dividends are automatically to be treated as in a class apart from other income, or that they are necessarily to be reported only when subjected to the command of the shareholder, alike in accrual and cash basis systems. On the narrow question presented to us we must hold in the negative.
Be viewed by the Board.
Decision will be entered for the respondent..
In the consolidated proceeding of Falmouth Co. the following appears in place of paragraphs 4 and 5 :
“The Petitioner reported the said dividend of $37,500.00 as taxable income on its 1937 return and paid taxes thereon. Said taxes so paid have neither been credited nor refunded by the Respondent.”
Respondent’s counsel at the hearing.
Petitioners’ reply brief.
(e) For the purposes of this Act, a taxable distribution made by a corporation to its shareholders or members shall be included in the gross income of the distributees as of the date when the cash or other property is unqualifiedly made subject to their demands.