
    Lorenzo C. Dilks, Petitioner, v. Commissioner of Internal Revenue, Respondent.
    Docket No. 27997.
    Promulgated April 22, 1930.
    
      Donald, Horne, Esq., for the petitioner.
    
      John D. Kiley, Esq., for the respondent.
   OPINION.

Lansdon:

The petitioner contends that the amount of $44,743.53, which he received in 1922, and which the respondent proposes to include in his gross income for that year, was constructively received in 1920. This contention is based on the fact that petitioner was in charge of the construction and funds of the George A. Fuller Co., that profits on construction under the contract could be and were estimated monthly, and that at any time he could have paid himself the amounts due him under the contract. We think our decision in Lorenzo G. Dilks, 15 B. T. A. 1294, in which we held that petitioner’s compensation under the contract could not be determined in 1920, disposes of this claim. The petitioner reported his income on the cash receipts and disbursements basis. There is no convincing evidence that the amount of $44,743.53 was at his command or available for his use prior to the date of its receipt in the taxable year. On this issue the determination of the respondent is approved.

At the hearing counsel for petitioner abandoned his second allegation of error.

Decision will be entered for the respondent.  