*2944 COMPENSATION - ACCOUNTING. - Petitioner, on a cash basis, as shipping agent, collected freights and charges for its principal upon which it was due, under its contract of employment, certain fixed percentage commissions. These moneys were deposited to an account upon which the agent had a general authority to draw for purposes of paying expenses, and at various times during its fiscal year 1921 petitioner drew against the deposit for itself and its subagents agents in payment of earned commissions and continued such practice even after directed by the principal not to do so but to present its commission account to it for audit and payment direct. At the close of the fiscal year by a book entry petitioner transferred from its commission account the total of these withdrawals to a suspense account. After the close of that year petitioner's accounts were audited and allowed by its principal and the suspense account closed by crediting to it the commissions as approved. Held, that the sum of these commissions was income to petitioner for its fiscal year 1921 in which they were drawn.
*671 In this proceeding petitioner seeks a redeterminination of its income and profits taxes for the fiscal year ending April 30, 1921, respondent having determined a deficiency for that period in the sum of $6,259.27, and assigns as error the action of respondent in including in its taxable income certain commissions due it from the Emergency Fleet Corporation and deducted by it in that year from funds in its hands belonging to that corporation.
FINDINGS OF FACT.
Petitioner, a ship-operating company, is a New York corporation organized in April, 1920, with its main office at 17 State Street, New York City. Since organization its accounts have been kept on a *672 cash-received-and-disbursed basis and on a fiscal year ending April 30. During the fiscal year ending April 30, 1921, and for several years thereafter, petitioner acted as agent for the United States Shipping Board Emergency Fleet Corporation, hereafter referred to as "the corporation" in managing and operating certain vessels of that corporation under an agency contract dated January 4, 1921. The provisions of that contract pertinent to the question here involved read as follows:
*2946 1. APPOINTMENT OF AGENT. - The Corporation appoints the agent as its agent to manage, operate, and conduct the business of such vessels as it has assigned or may assign to THE AGENT.
2. AGENT'S ACCEPTANCE OF APPOINTMENT. - The Agent agrees to act as such agent and to manage, operate and conduct the business of such vessels in accordance with the directions, orders, and regulations which the Corporation may from time to time prescribe.
3. MANNING, EQUIPPING, ETC., VESSELS AND PAYING DISBURSEMENTS. - The Agent agrees to man, equip, victual, and supply such vessels, and to pay for account of The Corporation the cost thereof and all other costs and expenses incident to the management, operation and conduct of the business of such vessels except as is otherwise provided herein.
* * *
8. COLLECTION OF MONEYS. - The Agent agrees to collect when due all freight and other moneys accruing to The Corporation arising out of the management, operation, and business of the vessels, and, in the event of the failure of any charterer, shipper, or other debtor of The Corporation to pay promptly such moneys, to immediately notify the proper officers of The Corporation and take such steps*2947 as may be proper to protect The Corporation's interests. The Agent further agrees to do all things which The Corporation is required by law or custom to do either as owner of the vessels or as carrier of the cargo.
9. HANDING OF MONEYS. - The Agent agrees to deposit all moneys collected on behalf of The Corporation in a national bank or a bank which is a member of the United States Federal Reserve Association as a separate fund in the name of the United States Shipping Board Emergency Fleet Corporation, which moneys shall, in so far as The Agent is concerned, be the property of The Corporation; and whenever the treasurer of The Corporation considers the public interest demands, they shall be subject to check by him, as well as by The Agent; The Agent shall make from such fund all disbursements authorized to be paid by The Agent for the account of The Corporation, and shall, at such times and in such form as may be directed by The Corporation, render a full account of all moneys received. No items will be allowed in settlement with The Agent unless supported by proper vouchers or accountings.
During the fiscal year in question petitioner rendered services and collected freights*2948 and charges for the corporation upon which it was entitled under the contract to certain fixed percentages as commissions. It also incurred expenses for operation of the vessels which, by the contract, were chargeable against the corporation. The moneys collected by it for the corporation were deposited as provided by the contract and upon these deposits petitioner at various times throughout the year drew checks in payment of the expenses of *673 operation mentioned and also to itself and to its subagents in payment of commissions earned.
By letter dated January 6, 1921, the corporation notified petitioner as follows:
5. Certain Managing Agents have misunderstood the intent of General Comptroller's Order #92 with respect to the Payment of Agents Compensation on outward cargoes, it apparently being the opinion of these agents that Compensation would be paid before the accounts covering the revenues earned on the outward cargoes and disbursements made in port of loading is audited. This is incorrect as it is not the intent that any compensation be paid until the audit of the account supporting the Agents bill for Compensation is completely audited.
By letter dated*2949 January 20, 1921, the corporation notified petitioner as follows:
1. Managing Agents who have made withdrawals from the Trust Fund for the purpose of paying themselves Compensation under Managing Agency Agreement M.O. 3, and/or M.O. 4 are hereby directed to make immediate restitution of such amounts as have been withdraw, to the Trust Fund.
2. Under no circumstances are Managing Agents authorized to make payments to themselves for Compensation from Shipping Board Trust Funds, as all payments of Compensation are to be made from this office.
Following the receipt of these letters petitioner made no change in its custom of drawing upon the trust fund in payment of its own and subagents' earned commissions, but continued such withdrawals throughout the fiscal year. All such withdrawals it charged into its account of "commissions received." None of the funds so withdrawn were returned by petitioner to the trust fund or to the corporation. On April 27, 1921, petitioner, by journal entry, transferred from its "commissions received" account to a suspense account as "disallowed commissions," the total of the commissions withdrawn by it from the trust fund and paid over to itself*2950 and its subagents during the fiscal year amounting in all to $26,847.12, together with the sum of $510.67 not involved in this proceeding, or a total of $27,357.79. After the close of the fiscal year 1921, petitioner's voyage accounts were from time to time audited by the corporation and the amounts of the commissions as earned and drawn were approved. As these accounts were formally approved by the corporation, the amount of the commission in each case was credited by petitioner to the suspense account of "disallowed commissions" and charged back into the account of "commissions received."
OPINION.
TRUSSELL: The amounts due petitioner as commissions and which it withdrew from the funds under its control and paid over to itself during the taxable year in question were not inchoate, unliquidated *674 or contingent. They were amounts determinable and due under the contract and the question raised in respect to them was merely whether they should have been withdrawn by petitioner from the gross receipts or the latter turned over to the corporation and a check sent petitioner by the latter after audit of its commission account. The question of which procedure should have*2951 been followed has no bearing on petitioner's tax liability, which is determined by the actual receipt of the commissions.
The record shows that the commissions making up the item in controversy wee earned, due, and received by petitioner in the fiscal year 1921. Petitioner, on the cash basis, can not transfer the receipt of its income constructively to some future year by a mere book entry recording the amount as one in suspense. Petitioner was entitled to its commissions by virtue of the contract and upon its rendering of the service. This right was not contingent upon a formal allowance of the item by the corporation. Having such right to the commissions it took them from funds in its hands belonging to the corporation, and appropriated them to its own use. No portion of the funds so taken was returned by petitioner to the corporation and no effort appears to have been made by the corporation to secure repayment and no fact are alleged or proven which would indicate to us a legal right in the corporation to require a refund of these amounts.
The decisions cited by petitioner in support of its contention that the commissions withdrawn did not constitute income of the fiscal*2952 year 1921 were upon facts vitally different from those here involved. In , the plaintiff, as president of a corporation, anticipating that at some future time some additional allowance for compensation would be voted him, drew large sums from the corporation which were charged against him on the books as advances. After several years he was granted by the directors an allowance of $50,000 in addition to his salary, and this amount was then credited against his indebtedness for sums advanced in prior years and was held to be income of the year in which authorized and so credited. In , an allowance voted the taxpayer by a corporation for services rendered by him in the reorganization was not accepted but was turned over to a trust company of which he was the president, to be held in escrow as a guarantee of the ultimate payment of certain notes of the reorganized corporation held by that trust company. The taxpayer's ultimate receipt of the payment was contingent upon the happening of an event which did not come to pass within the taxable year and it was held not to represent income to*2953 him for that year. In , commissions were drawn by the taxpayer *675 from the corporation of which he was president and later a portion of the amount was questioned, and the disputed amount was returned to the corporation and was held not to have represented income to the taxpayer.
In the present case the right of the petitioner to the commissions it deducted from the funds in its hands was not disputed. The services were rendered and the amounts of the commissions were liquidated. The sole question was one of the regularity of the payment as made by petitioner from funds in its hands instead of by the corporation upon submission of a bill. It related merely to the method of accounting by the agent and whether it should be on vouchers submitted for payments made or by transmitting the funds with the bills for payment. This is a question with which we are not concerned. Petitioner was due to receive and did receive these payments during the fiscal year 1921 and they accordingly represent income to him for that period.
Judgment will be entered for the respondent.