The opinion
Arundell, J., dissenting: I would decide the second issue in this case for the taxpayer. He reports his income on a cash receipts basis and the shares of stock were returned at full value by him in the year in which he received the shares. He not only did not receive the shares in the year in which they are being taxed but it was not known what shares would come to him within, that year; nor had he even heard of the transaction within the year. It was not until the year following the taxable year in question that the Pasco Company was given instructions to issue the shares to the members. Before a cash basis taxpayer may be charged with the receipt of income he must receive cash or property having a fair market value, or such cash or property must be unqualifiedly subject to his demand. Regulations 111, section 29.115-1. The taxpayer in this case had no right to take possession of these Pasco shares in the year in which the tax is imposed, nor would a demand for the shares have been enforceable.
In my opinion, the way the taxpayer reported this income was the normal way taxpayers would follow and to attempt to upset this by the adoption of some theory of agency I think is a mistake.
Van Fossan, Harron, Johnson, and Withey, JJ., agree with this dissent.