The opinion
*736 OPINION.
Smiti-i :
Whether the item in controversy was -intended as compensation for services performed or was intended as a gift is not material. In any event it did not constitute taxable income to the petitioner unless and until received by him.
We have found as a fact that the petitioner did not, during the year 1923, actually receive or hold any legal claim for any part of the amount or proceeds thereof. The respondent seeks as an alternative to invoke the doctrine of constructive receipt. No deposit of the sum in question was ever made to the credit of the petitioner at any place. There was a tender of the amount by the M. & G-. Properties Co., Inc., which' the petitioner for reasons of propriety and within his rights refused to accept. The petitioner thereupon *737 made a proposal to the M. & G. Properties Co., Inc., which it accepted, that the sum tendered be paid over to a third party, to whom the petitioner was under no legal obligation, to be held for payment to the petitioner upon the happening of an uncei’tain future event. No ownership, control, or use and enjoyment of the sum was ever exercised by the petitioner. It was held by the escrow depositary subject to conditions that might have prevented the petitioner from ever receiving any part of it. The escrow agreement specifically stated that the petitioner was unwilling to and would not receive the money until the notes held by the Bankers Trust Company had been fully paid. There may be, as the respondent contends, some doubt as to the enforceability at law of the terms of the escrow agreement, but the question is not material. So far as is shown the terms of the agreement have been at all times carried out. Up to the middle of the year 1926, at which time the Bankers Trust Co. still held the principal and all the proceeds, the petitioner had not, in our opinion, received any income in respect of such amount. The deficiency resulted entirely from the addition to net income of the $10,000 in question.
Reviewed by the Board.
Judgment of no deficiency will be entered for the petitioner.