
    H. L. Campbell, Petitioner, v. Commissioner of Internal Revenue, Respondent.
    Docket No. 18321.
    Promulgated October 29, 1927.
    Under tbe Revenue Act of 1921, section 201 (e), a dividend payable witbin tbe taxable year is not for that reason alone “ unqualifiedly subject to demand ” of tbe stockholder, and where as in this case check therefor was mailed on the last day of the taxable year and received the following year, held, not included within gross income of the distributee for the earlier year.
    
      E. E. Shelton, Esq., for the petitioner.
    
      A. W. Gregg, Esq., for the respondent.
    Deficiency of $97.16 income tax for the calendar year 1923. The Commissioner included in petitioner’s income a dividend mailed to him in 1923 and received in 1924. The case was submitted on a stipulation of facts and briefs.
    
      FINDINGS OF FACT.
    The petitioner is an individual residing at Lynchburg, Ya. During the year 1923 he was a stockholder and president of the Glamorgan Pipe & Foundry Co. of Lynchburg, Va. The said company declared a dividend payable December 31, 1923, of which the amount coming to the petitioner was $1,690. The .corporation mailed a check to petitioner on December 31, 1923, addressed to him at Lynchburg, Ya., which was received by him in the regular course of the mails on January 1, 1924, a holiday. Petitioner did not deposit or cash the check until January 2, 1924.
    Petitioner has consistently kept his books upon a cash receipts and disbursements basis, and reported the dividend as income for the year 1924 and paid the tax thereon.
   OPINION.

Sterniiagen:

The Board has recently reversed the Commissioner in a similar situation, Robert W. Bingham, 8 B. T. A. 603, and it is unnecessary to set forth here the reasons for the decision. It may be said, however, as to the present case, that the stipulated facts show only that the dividend was declared and made payable in 1923 and check was mailed in that year. This is not, as a matter of law, the equivalent of saying that “ the cash or other property is unqualifiedly made subject to his demand.” It may be the skeleton, but more evidence would be needed to fill out the body of the statute.

Reviewed by the Board.

Judgment of no deficiency will be entered for the petitioner.

Morris and Love dissent.  