The opinion
WHITAKER, Judge
(dissenting).
If I had to decide this case according to what I think the law ought to be, I might decide it as the majority has done; but our job, of course, is to decide the case according to the law as it is, and I do not think the majority has done this.
It does seem unjust that plaintiff should have to pay a tax on income he was not allowed to keep, but I think the law says he should. He took his bonus from the company believing he was entitled to it, and with the right to do with it what he pleased. It was his absolutely and unconditionally, so *976 far as any one knew until long after the taxable year had passed. Under all the authorities this constituted income to him.
The following statement from North American Oil Consolidated v. Burnet, 286 U.S. 417 , 52 S.Ct. 613, 615 , 76 L.Ed. 1197 , has been many times quoted with approval and relied upon: “If a taxpayer receives earnings under a claim of right and without restriction as to its disposition, he has received income which he is required to return, even though it may still be claimed that he is not entitled to retain the money, and even though he may still be adjudged liable to restore its equivalent.”
See, among others, Schramm v. United States, 36 F.Supp. 1021 , 93 Ct.C1. 181; Commissioner v. Alamitos Land Co., 9 Cir., 112 F.2d 648 ; Penn et al. v. Robertson, 4 Cir., 115 F.2d 167 ; National City Bank of New York v. Helvering, 2 Cir., 98 F.2d 93 ; Saunders v. Commissioner, 10 Cir., 101 F. 2d 407 .
This is the law today.
The Supreme Court in Commissioner v. Wilcox, 327 U.S. 404 , 66 S.Ct. 546 , 90 L.Ed. 752 , 166 A.L.R. 884 , did not hold to the contrary. An embezzler does not take money under a claim of right, and he is certainly under the obligation to repay it; an obligation that arises at the moment he takes it, not some years later, as in the case at bar.
Nor can it be said that plaintiff received this income under a mutual mistake. There was no mistake as to the amount of the company’s income on which his bonus was figured. So far as anyone knew at the time, or could then ascertain, this was the company’s income.
It is true there was a contingency that the Government might claim that this was too much income and might try to get the company to pay back some of it; but whether they would or not, no one then knew; nor did they know how much of it the Government might claim was excessive, or what refund might be finally determined upon. This was contingent, speculative, imaginary, until long after the close of the taxable year. So far as anyone then knew, or could have ascertained at the time, this company actually had an income for the year 1942 of $650,748.00. On this basis plaintiff’s bonus was computed, as it should have been. Tax liability is determined on the basis of the facts at hand or ascertainable at the close of the taxable year, not on what may happen in the future. Heiner v. Mellon, 304 U.S. 271 , 58 S.Ct. 926 , 82 L.Ed. 1337 .
The facts of this case are different from those in Greenwald v. United States, 57 F. Supp. 569 , 102 Ct.Cl. 272 . In that case there was a mistake as to what the company’s income was; the accountants had falsified the books. Here, the company’s income was correctly computed. The reduction in it came about as a result of an event which happened long after the close of the taxable year.
I think the demurrer should be sustained and the plaintiff’s petition should be dismissed.