The opinion
Oppee,
dissenting: For the reason that it seems to me we are forsaking a rule that is by now firmly established, I with deference dissent. What petitioner was entitled to receive was a proprietary interest in his employer. This being a corporation, such an interest would commonly be spoken of as stock. What is comprehended, however, is the right to share in profits and losses, in management, and in assets upon liquidation. Frank J. and Hubert Kelly Trust, 38 B. T. A. 1014, 1016. All this the petitioner received in the taxable year.
The certificates of stock would have been nothing but evidences of an ownership which it thus appears he already possessed. 11 Fletcher on Corporations, Permanent Ed., 55; Kansas, Oklahoma & Gulf Railway Co., 42 B. T. A. 1128; Kathryn Lammerding, 40 B. T. A. 589; affd., 121 Fed. (2d) 80. A failure to receive such evidence is not the equivalent of a failure to receive the property which it represents. Com *740 mssioner v. Scatena (C. C. A., 9th Cir.), 85 Fed. (2d) 729. See also Schneider v. Duffy (U. S. Dist. Ct., Dist. N. J.), 43 Fed. (2d) 642.
This is not an instance of constructive receipt, for if petitioner received anything in 1937 he actually received the proprietary interest which is the subject of the tax. Commissioner v. Scatena, supra. If he did not receive that interest it is difficult to see how he could participate in the “affairs”, in the profits, and particularly in the losses, of the corporation, as he and the corporation agreed that he should. The parties have stipulated that if he was in receipt of income in the taxable year the amount was 776 times $17.50. I believe he should be held to have received income in that amount.
Smith agrees with this dissent.