dissenting: I can not agree with the opinion or decision in the foregoing proceeding. I feel myself bound by the explicit terms and conditions of the statute. The statute lays down an unambiguous mandate and a judicial tribunal is transcending its prerogative to construe it into the discard.
In the instant proceeding the respective corporations in which petitioner owned stock declared dividends in 1922 and checks were issued by these corporations and mailed to the petitioner in 1922, and these checks were payable in 1922 Avithout any restrictions or limitations. That being true, it seems to me that only one interpretation can be givun to the plain English of the statute, to wit, that the amount of the dividend was unqualifiedly made subject to the demand of the petitioner at the instant the dividend was declared.
Section 201(e) of the Revenue Act of 1921 prescribed:
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.
The 1921 Revenue Act is the only income-tax act that contains that or any similar provision. At the time of the enactment of that statute, the accounting system of constructive receipt, as well as the system of cash receipts and disbursements, was well known and recognized.
*610Article 54 of the Commissioner’s Regulations 45 was in force at the date of the enactment of the Revenue Act of 1921, and that article reads in part as follows:
Dividends on corporate stock are subject to tax when set apart for the stockholder, although not yet collected by him.
The Finance Committee of the Senate in its report No. 275, 67th Congress, at page 10, in discussing section 201 (e) states:
Minor obscurities in the present law have been clarified by stating conclusively certain provisions which heretofore have been stated in presumptions. It is further provided that a taxable distribution 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, which is in accord with the decisions of the courts and is well established in departmental practice.
The reference by that Committee to “ departmental practice ” unquestionably referred to article 54, of Regulations 45, quoted above.
It is a matter of common knowledge that in 1921, Congress, as well as the public in general, realized that rates of taxation would decrease with each successive act of Congress, and by the Act of that year surtaxes for the year 1922 were made less than for the year 1921. One does not have to draw heavily upon his imagination to perceive a plausible reason prompting Congress to incorporate subsection (e) of section 201 into the Act of 1921.
To construe section 201 (e) as it is construed in the prevailing opinion in the instant proceeding is to construe it completely into the discard. Under that construction it is absolutely superfluous in the statute, serving no purpose whatever. Without it, a taxpayer recipient of corporate dividends would report such income exactly as he is now authorized to report it by that decision and exactly as he reports all other income. I can not bring myself to believe that Congress put that subsection in the law void of a purpose and void of a meaning.
As a further indication that Congress had a purpose in view ,• and as an indication that corporate dividends should be reported with restrictions not applicable to other classes of income, section 213 (a) of the Revenue Act of 1921 (same Act) provides, after defining gross income, as follows:
* * * The amount of all such items (.except as provided in subdivision (e) of section 201) shall be included in the gross income for the taxable year in which received by the taxpayer, unless, under methods of accounting permitted under subdivision (b) of section 212, any such amounts are to be properly accounted for as of a different period * * * (Italics ours.)
The above-quoted section of the statute is a clean, clearcut declaration on the part of Congress that it did not intend that corporate dividend income should be absolutely controlled, in reporting same, by *611the taxpayer’s accounting method. All other income may be so reported, but dividends are expressly excepted from such control.
All other income was permitted to be returned in accordance with the taxpayer’s method of accounting, but corporate dividend income was singled out, and restrictions prescribed relative thereto. That Congress had the right to so treat such income is not questioned; that it should be treated differently from other classes of income I believe is demanded as plainly as English language can express the mandate. I do not feel myself authorized to agree to a construction of that statute which completely nullifiies it and renders it absolutely meaningless and superfluous.
Whether or not the stockholder happens to be situated so he may immediately demand the dividend is not involved in the provisions of the statute. The dividend is made subject to his demand whether he makes the demand or not.