(dissenting).
The Supreme Court held in Helvering v. Enright’s Estate, 312 U.S. 636, 61 S.Ct. 777, 85 L.Ed. 1093, that under § 42 there might be “accruals” which were different from “accruals” in other connections; but the case only involved the value at the time of a partner’s death of uncompleted services, performed by a firm of lawyers, some of which might be on a contingent basis, or indeed be only quantum meruits. The court held that, although these might not be “accrued” for ordinary purposes, they should be “accrued” in order to effect the purpose of § 42, for otherwise the income would altogether escape taxation, which it was the purpose of the amendment to avoid. However, it is one thing to hold that one should compute the present value of all the items of unfinished work on a lawyer’s books, even though there is a chance of error in doing so because some of the charges are contingent; they have a present value, which ordinarily can be approximately computed. But it is quite another thing, when the very obligee of a claim remains undetermined, arbitrarily to select one of the two or more possible persons who may become the obligee, and say that one will treat him as the owner of the claim. Such a doctrine, when applied between a decedent and his executors, may not indeed work unfairly; but, when applied to sales it leads, I submit, to preposterous results. Suppose the decedent sells the shares after the declaration of a dividend, but before the “record” date. The price of the shares will ordinarily include the dividend, for even the declaration of a dividend makes no difference in the case of companies which declare dividends regularly. Hence the decedent will pay a tax based upon his gain — if he has a gain — it may be a limited tax, but it is an income tax; and if he also pays a tax upon the dividend, he has paid twice. Moreover, even when he merely bequeaths the shares specifically, to tax the decedent and not the legatee, presupposes that in some way the company’s earnings all along were the decedent’s, for the declaration does not change his relation to them. It does set them apart for somebody, but not the decedent, unless he happens to outlive the “record” date. The confusion lies in the fact of treating the certainty that there is a debt as a certainty of the identity of the creditor. Anything is possible, but this goes beyond the declared object of the section, and, incidentally does not always favor the revenue. I agree that Commissioner v. Cohen, 5 Cir., 121 F.2d 348, is against this view; but it was based upon a mistaken reading of Helvering v. McGlue, 4 Cir., 119 F.2d 167, which went upon the court’s understanding, possibly its misunderstanding, of New York Law.