The principal problem of this case relates to the proper time for taxing partnership income earned in the year of the death of one of the partners.
A partnership is not a taxable entity under our internal revenue laws, but it has a taxable year for accounting purposes and is required to make an information return, which becomes the basis for computing the partners’ individual income. As the partnership fiscal year may be different from that of the individual partners, the law, U. S. Internal Revenue Code of 1939, Sec. 188, 26 U.S.C.A. § 188, undertakes to deal specifically with this situation. The controversy here hinges upon the proper application of this section, which provides that where the partnership taxable (fiscal) year is different from that of the individual partner, he shall include in the net income for his taxable year his share of the partnership net income for any partnership taxable year which ends during his individual tax year.1
In the instant case the partnership had a fiscal year ending January 31, while the partners were on the calendar year basis. Hence, for a number of years, by the operation of Section 188, the individual partners paid income tax on their respective shares of partnership income only for that partnership year which closed during the calendar year. Thus, in reporting 1946 income, each partner included his share of partnership income for the fiscal year which began February 1, 1945, and ended January 31, 1946. Partnership income earned during the remaining eleven months of 1946 pertained to the fiscal year ending January 31, 1947, and was reported in the individual returns for the calendar year 1947.
Our decision is required as to whether, as the Commissioner of Internal Revenue contends, the death of a partner on November 21, 1947, terminated the partnership for income tax purposes as of that date so as to make taxable as 1947 income the partners’ respective shares of partnership income which accrued from February 1, 1947, to November 21, 1947. The alternative treatment, for which the taxpayers are here striving, is that the partnership should be deemed to have continued for income tax purposes, despite the partner’s death on November 21, 1947, until February 1, 1948, the end of the normal partnership fiscal year. In that case, the income should be taxed as 1948 income.
For many years the firm of John C. Knipp and Sons had been engaged in the business of retail furniture, interior woodwork, and shipfitting. Since 1945 the business had been conducted by two partners, Howard F. Knipp and his uncle, Frank H. Knipp; and by the partnership agreement, each made a regular monthly withdrawal, which was called “salary,” at the rate of $25,000.00 annually. Profits over and above salary, as well as losses, were shared equally, but were not distributed until the conclusion of the partnership’s fiscal year the following January 31.
A highly important provision of the partnership agreement, paragraph 11,2 *439required that to become entitled to share in any fiscal year’s pro-fits, a partner must have survived the end of that year. On the death of a partner, he and his estate would have no right to any part of the profits of the current fiscal year beyond the amount of salary paid or ■due him up to the time of his death. ■Settlement of his interest in the partnership assets was to be made by reference to the capital accounts as of the February 1 prior to death. It is necessary to note the effect of this unique provision, whereby a partner lost all participation not only in profits accruing after his death, but even in such profits as had been earned during the portion of the fiscal year in which he lived and contributed to the business.
On November 21, 1947, Frank Knipp died, thereby terminating his and his estate’s interest in partnership profits earned since the preceding January 31, except the $20,700.00 of salary which had been paid or become due him before his death. Frank’s capital account as of the end of the last fiscal year preceding his death (January 31, 1947) had a credit balance of $226,320.90. This was subsequently reduced to $54,875.-96 by May 19, 1949, when his estate tax return was filed. The reduction was occasioned by settlement and renegotiation of certain government contracts. These renegotiations had begun prior to Frank’s death.
When the usual partnership information return had been duly filed for the fiscal year ending January 31, 1947, it showed a net income of $309,027.21 distributable in equal shares to Frank and Howard. The individual tax return for Frank’s 1947 income (filed by his executor) included Frank’s one-half share of this sum, $154,513.61. It did not, however, include the $20,700.00 which he received as salary from February 1, 1947, until his death. This amount was reported instead as 1948 income, on the theory that the partnership fiscal year continued, despite Frank’s death, until January 31, 1948. The Commissioner, asserting that the partnership tax year was terminated by Frank’s death determined a deficiency for 1947, designating the salary of $20,-700.00 as 1947, rather than 1948, income.
Similarly, Howard filed his return, reporting as 1947 income only his share of the partnership income for the fiscal year ending January 31, 1947. The entire partnership profits earned between February 1, 1947, and November 21, 1947, to which Howard alone was entitled (less $20,700.00 salary for Frank), and all income from November 21 to December 31, as well, were not reported until the following year, when they were returned as 1948 income. As with Frank, the Commissioner determined a deficiency in Howard’s 1947 taxes, on the theory that by the operation of paragraph 11, Frank’s death terminated the partnership tax year, and all income of the business from January 31, 1947, to the end of the calendar year was taxable to Howard as 1947, and not as 1948, income.
The law is authoritatively declared for us in Guaranty Trust Co. of New York v. Commissioner, 303 U.S. 493, 58 S.Ct. 673, 82 L.Ed. 975. Paragraph 11 of the Knipp partnership agreement makes the analogy between the two cases a close one.
In the Guaranty Trust case, the partnership was on a fiscal year basis ending July 31, while the deceased partner was on a calendar year basis. After his death on December 16, 1933, the trust company, his executor, making its return for the decedent’s 1933 income, included his share of the firm profits accruing to the end of the fiscal year on July 31, 1933, but omitted his share of the firm profits earned between that date and his death. The Commissioner *440determined a deficiency by adding to the 1933 taxable income the decedent’s share of firm profits between July 31 and December 16, 1933.
The basis of the Supreme Court’s decision that the Commissioner’s determination was correct was that both by the practical construction given to the partnership agreement by petitioner and the surviving partners, and by the applicable provisions of the New York Partnership Law, McKinney’s Consol. Laws, c. 39, decedent’s death dissolved the partnership, terminated his right to share in the profits, and fixed the date as of which the surviving partners were bound to account for profits. The Supreme Court held that the Congressional purpose was to make taxable in the individual taxpayer’s year all income distributable to him during that year. A pertinent lesson of that case is that “receipt of income or accrual of the right to receive it within the tax year is the test of taxability.” Guaranty Trust Co. of New York v. Commissioner, supra, 303 U.S. at page 498, 58 S.Ct. at page 676. Earlier, in the Court of Appeals for the Second Circuit, which likewise decided the case for the Commissioner, Judge Chase had said, 89 F.2d 692, 693: “The accounting whenever it took place was as of that date [the death]. That was when, in contemplation of law, his share of the profits became distributable.” In neither Court was the fact that the accounting was not completed until the following calendar year treated as material. We cannot escape the clear effect of the decision in the Guaranty Trust case that termination of sharing in profits was for the purposes of the income tax law a termination of the partnership tax year.
In the instant case, the same result is required by paragraph 11 of the partnership agreement. By its command, the partnership, as far as participation in income was concerned, ceased to exist. By virtue of Frank’s death, Howard received all profits from partnership transactions, not only with respect to business yet to be completed during the winding-up period, but indeed, even profits on completed transactions dating back as far as January 31, 1947.
The petitioners think it significant, that in Guaranty Trust, the surviving partners undertook to form a new partnership after the decedent’s death, to' take effect retroactively as of the date of his death. Here, Howard formed: a corporation that took over the business as of January 31, 1948; but in the intervening period, from November 21, 1947, to January 31, 1948, paragraph; 11 of the partnership articles created! the same result as in Guaranty Trust by completely immunizing the decedent’s estate from all operations, whether resulting in profits or losses. The fact that in Guaranty Trust, the succession was by a number of partners, while here it was by one individual, does not distinguish the cases. The significant fact common to both cases is that the partnership fiscal year ended when the decedent’s estate no longer had its-capital at risk, to be affected by gains or losses from the operation of the business.
In no true sense can it be said that after Frank’s death, Howard was winding up the business of the partnership; he was operating on his own, and Frank’s estate had nothing at stake. The income tax law is concerned merely with income, and inasmuch as sharing of profits had ceased, the partnership had effectually terminated in the eyes of the tax law.
We are not dealing here with the normal situation, where the decedent partner continues during the winding-up period to share in profits accruing from outstanding transactions. See note, 80 A.L.R. 15, 32. Under generally recognized local law, there is such a sharing of partnership profits where the partners have made no other agreement; but nothing precludes their making such an arrangement as was made here. The Uniform Partnership Act, which is in effect in Maryland, Article 73A, Flack’s Annotated Code of Maryland, was in effect in New York when the Guaranty *441Trust case arose and was referred to in that opinion; yet its provisions, which include the distinction normally to be observed between dissolution and termination, were not deemed in the circumstances to prevent termination of the partnership tax year at the time of the death. Where the partners have not substituted their own arrangement, and the deceased partner’s interest continues to be subject to pending transactions, the law recognizes that ordinarily, there is good reason for allowing the tax year to continue after dissolution and until its normal conclusion, unless sooner terminated by a complete winding-up of the firm. In the present circumstances there is no reason for the distinction between dissolution and termination, at least as far as the income tax law is concerned.
The Government advances the additional argument that one cannot be a partner with himself and that, for this reason, too, the partnership year terminated as of Frank’s death. We agree with the taxpayer that this argument draws an unnatural distinction between cases where a single partner survives and where there are more than one survivor. We have shown that under the Uniform Partnership Act a single survivor may, as to unfinished business, be a partner with the decedent; and in an appropriate case the partnership will, under a legal fiction, be deemed to continue. The distinction to be made here, however, is that the parties specifically agreed not to be partners as to income arising after Frank’s death; and the same result would seem to follow from such an agreement where there is only one survivor, no less than if there were more than one. Here the parties negatived any post-mortem partnership ; none is required by the necessities of the situation; nor will the Uniform Partnership Act impose it.
But, it is insisted, the pending negotiations, begun before Frank’s death but completed later, might have affected not only the capital accounts of the partners as of January 31, 1947, as they indeed did, but they might also have wiped them out, and affected the income of Frank which had been paid or was due him in the form of withdrawals. This contention, however, must fail, for it is directly contrary to a clear and indisputable finding of fact made by the Tax Court in construing the written agreement and oral understandings. The decedent’s withdrawals, according to the finding, were not to be affected by outstanding partnership debts; for “* * * if the partnership income was insufficient to cover the partners’ contractual drawings in any year, a partner who died during the year could not be charged with any part of the decrease in net partnership assets, and was entitled to his full contractual drawings or ‘salary.’ ”
If Frank’s share was fixed, it follows that Howard’s was, too. Howard was entitled to all the profits of the business arising after January 31, 1947. While the exact amount might be subject to computation and might not be free from uncertainty by reason of pending renegotiations, he was no less certain as to the amount of his income in the year 1947 than any business man similarly engaged in business as an individual. Every taxpayer in a going business must compute his profits at the end of the tax year, since the scheme of the statute contemplates annual returns and the taxation of annual income, although it necessarily involves estimates in some instances which may require correction at a later time.
Decisions in several circuits have been cited to us as supporting a contrary view. Henderson's Estate v. Commissioner, 5 Cir., 155 F.2d 310, 164 A.L.R. 1030; Girard Trust Co. v. United States, 3 Cir., 182 F.2d 921; Commissioner of Internal Revenue v. Mnookin's Estate, 8 Cir., 184 F.2d 89. These, however, turned on facts negatived here. They disclose the converse of the arrangement between the Knipps, because in those cases there was a continuation of the sharing of partnership income after the death of a partner. The two situations *442are so different as to require a difference in result. This was recognized in Girard Trust Co v. United States, 3 Cir., 182 F.2d 921, a case chiefly relied on by the taxpayers. The opinion, by Judge Hastie, contains, 182 F.2d at page 924, this significant language: “If there is no agreement for continuation upon the death of a partner, and if distributive shares are determined and allotted as of that date, the partnership has established an abbreviated accounting period and taxable year conterminous with the life of the deceased partner.” Even where the deceased partner’s estate continued to share in profits for a short period after his death, the Court of Appeals for the Second Circuit felt constrained to follow the Guaranty Trust decision. Commissioner of Internal Revenue v. Waldman’s Estate, 2 Cir., 196 F.2d 83.
Reliance is placed, also, upon the decision in Heiner v. Mellon, 304 U.S. 271, 58 S.Ct. 926, 82 L.Ed. 1337. We think such reliance misconceived. In that case, two corporations in the whiskey business had begun liquidation in 1918. The three stockholders, upon assignment to them of the corporate assets, took over the liquidation as partners. One of them, Frick, died in December, 1919. The question before the Supreme Court was whether profits distributed to the surviving partners, the Mellon brothers, in 1920, the year after Frick’s death, should be taxed in that year, or not until the liquidation had been completed. The Mellons argued that in a liquidation, one could never be certain before its termination whether it would finally result in a profit or a loss. The liquidation in fact continued till 1925. It was held that the business of the partnership was liquidation, and the Mellon brothers had to pay taxes on the profits each year as realized. The question there was not whether a tax year terminated upon the death of a partner, and it is significant that the Supreme Court did not think this was the point involved, for it did not even refer to the Guaranty Trust case, which adjudicated such an issue less than two months earlier.
We have been referred to certain new statutory provisions in the Internal Revenue Code of 1954, Section 706(c), as having some indirect bearing on the case before us. The suggestion is made that this new provision, that death shall not end the taxable year of the partnership, was merely declaratory of the old law. With this, however, we cannot agree. “Bunching” of more than a year's income in a single tax year was, indeed, sought to be eliminated by Section 706(c). True, the Senate Committee Report (see U. S. Code Congressional and Administrative News 1954, p. 4723) does not explicitly treat bunching as permitted under the 1939 Internal Revenue Code, which controls this case. The report speaks in uncertain terms of such a “contention” being made. It cannot, however, be inferred from this alone that the Senate regarded the new Code as merely declaratory of the old law. The House Committee Report, on the other hand, plainly evidences the opinion that the new statute was not merely declaratory, but designed to effect a change in the law. It recites:
“Under present law the death of a partner may result in the closing of the partnership year and the bunching of more than a year’s income in the decedent’s last year. Where the partnership and the partners are on different taxable years, this rule may have the effect of concentrating as much as 23 months’ income in the final return of the deceased partner, that is, the income for the partnership year ending within his taxable year and the income for the taxable year closed by the partner’s death. The bill provides relief in this situation by preventing the partnership year from closing on the death of the partner. The partnership year will then run to its normal conclusion, and the decedent’s share of the income for such year will be taxable to the estate.” See U. S. Code Con*443gressional and Administrative News 1954, p. 4093.
It is not within our province to give retroactive effect to the 1954 Act.
We have fully considered Mr. Justice Stone’s observation in the Guaranty Trust Company case, that if the income in question were not taxable in 1933, it would not be taxable at all. It was proposed to us in argument that since the law was later changed to prevent escape from taxation,3 the result here should not be controlled by Guaranty Trust. The suggestion cannot prevail for two reasons: first, because this feature of the old law was merely noted in passing and was not the basis of the Court’s opinion in the Guaranty Trust case, as shown in the foregoing discussion and as recognized in Commissioner of Internal Revenue v. Waldman’s Estate, supra, 196 F.2d 85; second, because it attributes to the Supreme Court a purpose to revise rather than interpret the income tax laws.
The argument that bunching income works a hardship in this case is the same as the one overruled in the Guaranty Trust case. Moreover, were the hardship of bunching a pertinent consideration, it would be mitigated by the fact that for a number of years, these taxpayers had the advantage of paying their taxes almost a year late because the partnership fiscal year deferred taxes on eleven months of firm profits until the following year. Fundamentally, the hardship here results from the fact that Howard’s income was greater in 1947 than in 1948. If his 1948 income exceeded that of 1947, the rule for which he now contends would work to his disadvantage. We cannot be certain which interpretation of this statute will, in the long run, be more helpful to the Government, and which to taxpayers. Even if we had a discretion in the matter, this should admonish us against letting the interpretation of a statute turn on a purely fortuitous circumstance; for in straining to avoid hardship here, we may make ourselves responsible for inflicting hardship upon future litigants. We are bound, in any event, by the Guaranty Trust case, and have no power to revise the law to meet the supposed equities of particular cases.
II
A second issue, raised by the Government’s appeal, relates to computation of Frank’s gross estate for estate tax purposes. The Tax Court held that the share of firm profits, above “salary,” which Frank would have received for the period January 31, 1947, to November 21, 1947, had he lived, was not includable in his gross estate under Section 811(a) of the Internal Revenue Code of 1939. The Commissioner seeks reversal of this decision, reasoning that these profits constituted property of Frank at his death and passed to Howard by the partnership agreement as a testamentary disposition.
We are, however, unable to accept this reasoning, and agree with the decision of the Tax Court. The Commissioner’s contention sharply conflicts with the plain and practical effect of the articles of partnership, which required a partner to live to the end of the partnership tax year in order to acquire any interest in the year’s profits. Sharing, beyond accrued salary, was clearly dependent upon survivorship, and unless this contingency was satisfied, a partner had no vested right in any part of the profits for any portion of the fiscal year. As the Tax Court correctly observed, the right to share was potential only and did not mature till the end of the tax year, if the partner was then living. In view of this, we do not think it would be correct to say that Frank, at the time of his death, possessed any share in the firm profits includable in his gross estate.
*444Accordingly, we uphold the decisions of the Tax Court upon both questions.
Affirmed.
. “If the taxable year of a partner is different from that of the partnership, the inclusions with respect to the net income of the partnership, in computing the net income of the partner for his taxable year, shall be based upon the net income of the partnership for any taxable year of the partnership (whether beginning on, before, or after January 1, 1939) ending within or with the taxable year of the partner. 53 Stat. 71.” 26 U.S.C.A. § 188.
. “Eleven. It is agreed among the partners hereto, anything in this agreement to the contrary notwithstanding, that in the event of any partner’s death, the amount to the credit of said deceased partner on the firm’s books on February 1, 1943, or on February 1st in any subsequent year, provided the partnership has run for twelve consecutive months; otherwise the date of settlement shall be as of the prior February 1st, less the amount of his withdrawals over salary. *439shall he paid to the Executors or Administrators of said deceased partner, and same shall be in full settlement of the deceased partner’s interest in said partnership.” (Agreement of Co-partnership between Frank H. Knipp, Howard F. Knipp and John C. Knipp, July 7, 1943.)
. Sec. 42(a), Internal Revenue Act of 1934, as amended in 1942; and also Sec. 126 of the Internal Revenue Act of 1942, 26 U.S.C.A., I.R.C.1939, §§ 42(a), 126.