The opinion
Leech,
dissenting: There is certainly no apparent reason here to disregard the separate corporate entity of the bank and what was actually done.
The majority opinion finds as a fact that the proceeds of the sales of split-up stock, though deposited in petitioner’s .account, *911 “were not his [decedent’s] property by reason of being deposited therein.” The amount so deposited was substantially more than the amount ultimately determined as due decedent. ■ Under the agreement between the decedent, his associates and the bank, disclosed in the findings of fact, decedent had no right to any part of those proceeds, without restriction as to its disposition, except as loan or advance, until the old stock was delivered to the bank. True, when decedent died, his estate was liable to the bank for advances to decedent, and was obligated to perform decedent’s contract to deliver the old stock to the bank. But, under that same agreement, he could not have secured the proceeds of the sale without delivery of the old stock and, in fact, he did, not deliver any of that stock to the bank during his lifetime. Therefore, the sale of the stock in question was not complete at the time of his death, and no part of those proceeds was taxable income to decedent. North American Oil Consolidated v. Burnet, 286 U. S. 417 .
The doctrine of constructive receipt should be sparingly applied. We refused to apply the rule in A. G. Hull, 33 B. T. A. 178. The facts there were, at least, no stronger for petitioner than here. The decision in that case, in my judgment, is contrary to the conclusions reached in the majority opinion.
Black agrees with this dissent.