
    Appeal of THOMAS BEMIS, SR.
    Docket No. 3100.
    Submitted June 17, 1925.
    Decided June 30, 1925.
    Amounts held not actually or constructively received.
    
      Leroy Sanders, Esq., and T. B. Rutter, Esq., for the taxpayer.
    
      Blount Balls, Esq., for the Commissioner.
    Before SteRnhagen, Lansdon, and Love. .
    The taxpayer appeals from the determination of a deficiency in income tax of $11,581.26 for the calendar year 1919, based upon the Commissioner’s finding that the taxpayer in the year in question had constructively received an amount of $41,488.93.
    FINDINGS OF FACT.
    The taxpayer did not during the calendar year 1919 receive, either actually or constructively, an amount of $41,488.93 due to him from the Anderson Steam Vulcanizer Co. as commissions on sales. He made his return and kept his accounts on the basis of cash receipts and disbursements.
    
      DECISION.
    The deficiency determined by the Commissioner is disallowed.
   OPINION.

Sternhagen:

The Commissioner when he asserted the deficiency thought that the taxpayer exercised control of all the affairs of the Anderson corporation; that the amounts of commissions were payable to him during 1919; that they were credited to him on the corporation’s books and that it was only the taxpayer’s voluntary omission that he did not actually withdraw the amounts into his own possession; that the amounts were available to him and unequivocally subject to his use. But the evidence is clear that by his contract the taxpayer had no right to the amount until after the sales for the entire year had been fully determined and the books closed, and that even at that time, in 1920, the corporation did not have available funds to pay him. He certainly received nothing in 1919 and was in no position to enforce a demand for the amount in that year. Appeal of H. C. Couch, 1 B. T. A. 103; Appeal of A. Bluthenthal, 1 B. T. A. 173; Appeal of A. L. Englander, 1 B. T. A. 760; Appeal of J. M. Edmunds, 1 B. T. A. 998.  