Appeal of Bemis

OPINION.

Sternhagen:

The Commissioner when he asserted the deficiency thought that the taxpayer exercised control of all the affairs of the Anderson corporation; that the amounts of commissions were payable to him during 1919; that they were credited to him on the corporation’s books and that it was only the taxpayer’s voluntary omission that he did not actually withdraw the amounts into his own possession; that the amounts were available to him and unequivocally subject to his use. But the evidence is clear that by his contract the taxpayer had no right to the amount until after the sales for the entire year had been fully determined and the books closed, and that even at that time, in 1920, the corporation did not have available funds to pay him. He certainly received nothing in 1919 and was in no position to enforce a demand for the amount in that year. Appeal of H. C. Couch, 1 B. T. A. 103; Appeal of A. Bluthenthal, 1 B. T. A. 173; Appeal of A. L. Englander, 1 B. T. A. 760; Appeal of J. M. Edmunds, 1 B. T. A. 998.