dissenting: I am of the opinion that the deduction claimed is allowable under the decisions of the Supreme Court in United States v. Anderson, 269 U. S. 422, and American National Co. v. United States, 274 U. S. 99; 6 Am. Fed. Tax Rep. 6747; 47 S. Ct. 520. I am further impelled to this conclusion by my opinion that if the amount claimed (which is admittedly an ordinary and necessary expense of the business and deductible in some year as such) is ever to be allowed, it must be as an expense of conducting the business for the year in question.
*597It seems that at the end of tbe year the employees had done everything required of them to earn the compensation in question. Subject to certain contingencies under which these employees might lose the right to demand payment, the petitioner was obligated to the employees for the amount in question. The contingencies affected the payment, not the accrual of the liability; as to payment,.these contingencies may be conditions precedent, but in my opinion the liability accrued in the taxable year subject only to certain conditions subsequent under which it might be wiped out.
I appreciate that difficulties are involved in the acceptance of this view in determining the course to be followed in computing income for subsequent years should this liability be canceled in such subsequent years by losses of the business or termination of the employment. The agreement of the employees that this compensation should be subject to diminution by subsequent losses may properly be treated as a sharing of such losses of the petitioner by the employees, and to the extent that such losses are borne by the employees, the petitioner is compensated and to that extent does not sustain the full loss of such subsequent year.
The effect upon income of a discharge or withdrawal of the employees within five years is not so clear. Whether income would be realized from an act by which the amount theretofore earned by the employee was to “ revert to this corporation ” (to use the words of the resolution) is not before us. It appears, however, that in American National Co.v. United States, supra, the court allowed a deduction for the full amount contracted to be paid over a period of years, although it appeared that such amount might be reduced prior to the date of payment. In that case the taxpayer had treated the amount of his reduced liability as income in the year of such reduction. While the court does not comment on this situation, it does state that the method which was adopted clearly reflected the true income, thereby implying that a change in the liability must, by reason of the method of accounting followed by the taxpayer, be accounted for as income.
In the case before us it will scarcely be contended that the financial condition of the petitioner could have been reflected without showing the liability to its employees and in my opinion its true net income for the year could not be computed without allowing the deduction claimed. For these reasons I dissent from the conclusion reached.
MoRRis concurs in the dissenting opinion.