The opinion
L. HAND, Circuit Judge
(dissenting in part).
Even when the taxpayer has received the money, it is theoretically possible to treat the item as in suspense, until the right to it has been determined, or as an immediate receipt, with a corresponding deduction, if it is later repaid. But the second was authoritatively laid down in North American Oil Consol. v. Burnet, 286 U. S. 147 , 52 S. Ct. 613 , 76 L. Ed. 1197 , as applicable to accounts kept either on an accrual, or a cash, basis. This answers the main issue, and my only difference with my brothers is as to that part of the moneys impounded in Rate Cases No. 2, which was never withdrawn until the suits were determined. If the right to withdraw had been unconditional, perhaps we ought to treat this as though it were already in the eoffers of the companies; it was equally, available. Indeed, even if the companies had been required to give their individual bonds, these would in substance subject them to no other liability than they were under anyway. But the interlocutory decrees which allowed the withdrawal of $673,000, required them to deposit securities of their own, or the bonds of a surety company. It can scarcely be said that this made the moneys immediately available, like cash on deposit. The condition required them either to turn over equivalent property to the court, or to assume an obligation to the surety, which often demands security. I do' not see how such moneys are any more received by the taxpayers, than if the court continued to impound them.
It is sometimes possible, when accounts aro kept on an accrual basis, to ignore the conditional character of the right, but that is just what, as I read it, was denied in North American Oil Consol, v. Burnet, in a closely similar situation; the right unaccompanied by possession or its equivalent was too contingent. I agree that in fact the uncertainties were no greater then than those determining the recovery in the Federal Control Cases. 1 But the distinction between’ the liquidation of a determined right, and the determination of a disputed right, is familiar throughout the law, though for practical purposes one may be as incalculable as the other. It is reasonable to import this distinction, taken in so many other situations. The “title” to the moneys was in genuine dispute; indeed the company’s last efforts had been unsuccessful. To treat the impounded sums as presently aeeruable appears to me, therefore, to ignore a well recognized classification. As to $673,000 of the moneys in the Rate Cases No. 2,1 therefore dissent; otherwise I concur.
See Commissioner v. Old Dominon S. S. Co. (C. C. A.) 47 F.(2d) 148 ; Old Dominion S. S. Co., 16 B. T. A. 264; Great Northern Ry. Co., 8 B. T. A. 225; Now Orleans, Texas & Mexico Ry. Co., 6 B. T. A. 436; Virginia Carolina Securities Corp’n, 6 B. T. A. 84; Cincinnati, Findlay & Fort Wayne Ry. Co., 5 B. T. A. 108; Illinois Terminal Co., 5 B. T. A. 15. See, also, Kansas City Southern Ry. Co., 16 B. T. A. 655; Western Maryland Ry. Co., 12 B. T. A. 889, and Missouri Pac. Ry. Co., 22 B. T. A. 267.