doctrine of tax law which renders the means employed unavailable to him. The Government suggests that the doctrine of constructive receipt is such a device.
Under the doctrine of constructive receipt, income which is subject to the unfettered command of a taxpayer and which he is free to enjoy at his option is taxed to him, despite the fact that he has exercised his own choice to turn his back on that income. See 2 Mertens, Law of Federal Income Taxation, Section 10.02. The doctrine then, embodied in Treasury Regulations, Section 1.451-2(a)
is one by which the form of a transaction is ignored in order to get to its substance. Constructive receipt has particular applicability to questions of the proper taxable year and has been applied most often as to individual taxpayers earning income in one period who attempt to derive its benefits at a later time.
In the instant situation, certain facts exist which might, standing alone, lead to the conclusion that PDM constructively received income in 1960, rather than 1961. First is the fact that PDM and Chicago Bridge, at PDM's urging, structured the transaction so as to lead to taxability in the most advantageous year. As has been noted above, this can lead to no inference in and of itself of wrongdoing or taxability. Second is the fact that immediately after the initial agreement calling for immediate payment was reached, PDM delivered the endorsed Horton certificates to Chicago Bridge. This fact is effective to raise the inference that on November 22, 1960, prior to the parties' amendment of their contract of sale, PDM had an unfettered right to demand payment immediately.
It is important to note however that even assuming PDM had an unfettered right to the money in 1960, it only had such right for a period of hours -- the period after the initial agreement was reached on November 21, 1960, and before PDM received the information on November 23, 1960 which led it to seek and obtain modification of the contract. Once the modification had been accomplished, PDM and Chicago Bridge were bound by their contractual obligation that PDM should receive the bulk of the payment in January of 1961.
Therefore this Court finds that even if PDM had an unfettered right to receive payment in 1960, such right only existed in the taxpayer for a matter of hours and is de minimis to the considerations here at hand. An effective modification of the contract of sale having been accomplished, this case is governed by the reasoning used in Commissioner v. Oates, 207 F.2d 711 (7th Cir. 1953) and Commissioner v. Olmsted Inc. Life Agency, 304 F.2d 16 (8th Cir. 1962).
In Oates, the taxpayers were insurance agents who, at retirement, amended their agency contract with the insurance company to provide that future renewal commissions should be paid to them in equal monthly installments over a 15 year period, regardless of when and in what amounts the renewal commissions would have become due under the original agency agreement. The Commissioner determined that the agents were taxable on the renewal commissions as they accrued under the original contract. Both the Tax Court (18 T.C. 570) and the Seventh Circuit rejected the Commissioner's contention and found that the amended contract constituted a novation, that the old contract had been extinguished and that the taxpayer had no right to demand compensation for services other than that set out in the new contract.
The Tax Court (18 T.C. at 585) pointed out that the taxpayers
"under their amended contracts which were signed prior to their retirement . . . were not entitled to receive any more than they did in fact receive and that being on the cash basis they can only be taxed on those amounts [actually received]."
In Olmsted a similar fact situation arose whereby the taxpayer life agency assigned to an insurance company all rights to renewal commissions on previously written life insurance policies in return for a contract whereby the taxpayer was to receive monthly payments over a 15 year period. Finding Oates to be controlling, both the Tax Court (35 T.C. 429) and the Eighth Circuit held that the above transaction was a novation rather than a "sale or other disposition" within the meaning of Section 1001 of the Internal Revenue Code. Since the taxpayer in Olmsted was on the cash basis of accounting, he could be taxed on the payments only as received.
It is of course possible to attempt to distinguish the Oates and Olmsted cases on the basis of their facts,
but what is important and controlling about them is not their factual contexts but the reasoning applied in order to reach the proper conclusion. In both Oates and Olmsted the taxpayers had a more or less immediate right to receive income under contracts of apparently long standing. In both cases, before the actual receipt of that income, taxpayers amended the contracts to provide for payment over a longer term in the future. In both cases the desired effect sought by the taxpayers -- the deferral of the receipt of taxable income until a later date -- was allowed by both the Tax Court and the Court of Appeals. Here the taxpayer had the theoretical right to receive payment for far less time than its counterparts in either Olmsted or Oates. As was done in those two cases, PDM's legally valid modification of the original contract will be upheld.
The further basis for decision in both Oates and Olmsted was the finding that the taxpayers in both cases were on the cash basis of accounting. PDM alleges, through the depositions of its financial officers, that it has for decades consistently kept its books and filed its tax returns, so far as non-operating income is concerned, on the cash basis. The Government contends that PDM has failed to demonstrate conclusively that it employs the cash basis as to all investment income. It concedes that PDM reports dividend income on the cash basis, but states that taxpayer points to no sale of an investment which straddled two or more tax years which it reported on the cash basis.
I find expressly that PDM was on the cash basis of accounting as to investment income. The logical inference one draws from the fact that PDM has never reported a transaction such as this one on the cash basis is that such a situation has never arisen, not that PDM uses a basis other than the cash method. PDM's use of the cash basis further buttresses the holding that it can only be taxed on cash received in 1961, without regard to the fiction of constructive receipt.
Therefore, summary judgment is granted to plaintiff PDM. It is held that PDM and Chicago Bridge entered into a valid amendment of their agreement for the sale of the Horton stock and the tax consequences are governed thereby. As a cash basis taxpayer PDM may only be taxed on the amount actually received in any given year. It actually received, in accordance with the amended contract, the bulk of payment in 1961 and should be taxed for that receipt in that year. The doctrine of constructive receipt will not be applied. Summary judgment being granted plaintiff on this basis, it is unnecessary to reach the issue of whether or not plaintiff filed a valid election to have the transaction taxed under the installment method. Plaintiff is entitled to a refund in the full amount claimed.
The above constitutes the findings of fact and conclusions of law required by F.R.Civ..P. 52.
AND NOW, to wit, this 15th day of June, 1973, in consideration of the foregoing Opinion, IT IS ORDERED that judgment be and the same hereby is entered in favor of the plaintiff and against the defendant in the amount of $536,095.55, with interest according to law subject to change within sixty (60) days from this date based upon a recomputation by the Internal Revenue Service agreed to by both parties.