The opinion
Black,
dissenting: I dissent from the majority opinion on the second point. The facts clearly show that petitioner did not actually receive the check for the stocks which it had sold on December 28, 1927, until January 3, 1928. There appears to have been no unusual *348 postponement in the mailing of this check by the brokers to petitioner. It appears to have been done in the regular course of business and on account of the particular facts stated in the majority opinion, the check did not reach petitioner until January 3, 1928. It appears from the facts stated in the majority opinion that it was not until January 3, 1928, that petitioner became unqualifiedly entitled to receive the money. The majority opinion states in substance as follows: On January 3,1928, the Columbus office of Otis & Co. received notice of the transfer of the stock to Otis & Co. and issued and delivered to the petitioner a check for $104,190 in payment for the stock.
While it is true that Otis & Co. acted as agent for petitioner in the sale of the stock, and, as a general rule, income when paid to an agent is income to the principal, there are exceptions to this doctrine of constructive receipt by the principal. Generally, a receipt will not be taxed to the principal when it comes to the agent unless the agent is acting exclusively for the taxpayer and the fund is in the hands of the agent, unqualifiedly subject to the demand of the taxpayer principal. Sydney F. Tyler et al., Trustees, 28 B. T. A. 367.
It seems clear that in the instant case Otis & Co., petitioner’s agent in the sale of the stock in question, was not willing to turn over the money which it had received from the sale until its Columbus office had received notice that petitioner had duly transferred the 1,000 shares of stock in question to Otis & Co. This information was received at Otis & Co.’s Columbus office on January 3, 1928, and thereupon Otis & Co. promptly issued its check to petitioner. Thereupon the $104,190 became unqualifiedly subject to petitioner’s disposal.
Section 42 of the Revenue Act of 1928, reads: “ The amount of all items of gross income shall be included in the gross income for the taxable year in which received by the taxpayer, unless under methods of accounting permitted under section 41, any such amounts are to be properly accounted for as of a different period.” (Italics supplied.) Section 213(a) of the Revenue Act of 1926, referred to by the Supreme Court in Avery v. Commissioner, 292 U. S. 210 , contains the same language.
The majority opinion finds “ the petitioner was on the cash receipts and disbursements basis.” For reasons I have already stated, it seems to me that in the instant case there is no occasion to apply the doctrine of constructive receipt and that the $104,190 in question should be taken into petitioner’s gross income in the year 1928. Cf. Avery v. Commissioner, supra.