SUPPLEMENTAL OPINION.
Harlan, Judge:
The original opinion in these proceedings was promulgated September 28, 1948, at 11 T. C. 447. Subsequently the petitioner and the respondent filed conflicting computations under Rule 50, and, following a hearing on December 21, 1948, each party filed a memorandum in support of his computation. The variance in tax liability shown in the computation for 1940 results from disagreement as to an alleged loss in connection with the Grays Harbor transaction. The difference in the 1941 computations results from an issue in the case which was not theretofore apparent, viz., whether a taxpayer who has received more than one payment in 1941 which comes under section 107 of the Internal Revenue Code may take advantage of that section for the one which works to his tax advantage and ignore it as to the others.
Petitioner's first contention is that he is entitled to reduce gross income for 1940 by an item representing loss on waterworks purchased in connection with the Grays Harbor transaction in the amount of $4,008.60.
Petitioner testified at the hearing that in order to procure the closing of the Grays Harbor transaction he was compelled to purchase a waterworks plant at $4,003.60 above the fair market value. He gave no testimony as to what disposition, if any, he had ever made of that plant or whether he had ever suffered a capital loss from the sale thereof. Moreover, he raised no issue pertaining to this alleged loss in his petition. This Court, however, in its findings of fact made the following statement:
In completing the Grays Harbor deal it was necessary for Myers to purchase personally from his own funds a waterworks plant at a cost of $16,003.60, the fair market value of which was $12,000, occasioning him a loss of $4,003.60, which he deducted from his compensation of $71,060 paid him by the Grays Harbor PUD.
Inasmuch as this Court held that income from the Grays Harbor transaction was not taxable under the provisions of section 107, and since that question was, under the pleadings, the only question presented for decision, the above statement in the findings of fact was completely obiter as to any issue before the Court and it furnishes no basis for any reduction in gross income in the computation of the deficiency under Eule 50.
We hold that the petitioner is not entitled to a reduction in income in the amount of $4,003.60, and, in accordance with the stipulation of the parties, find the correct deficiency for the year 1940 to be $36,916.68.
Petitioner's second contention is that, although the original opinion herein sustained petitioner's contention that he was entitled to the benefit of the provisions of section 107 of the code on five specific items of his 1941 income, he is now permitted to reject the use of section 107 as to four of those five items and apply the total income involved in those four items to his 1941 income and tax only the fifth item as authorized under section 107.
In his petition, petitioner alleged as-error the failure of respondent to permit petitioner to compute his income tax for the years 1940 and 1941 in accordance with the provisions and limitations of section 107 of the code. Involved in the income for 1940 were nine items of income for which the petitioner was claiming section 107 relief, and in his 1941 income there were five items of income for which the petitioner claimed relief under section 107. This Court granted said relief to the petitioner as to five of the items in 1940 and denied relief as to the remaining items. The Court granted section 107 relief to five of the items in the 1941 income. The operation of section 107 on the 1940 issue is not before the Court at this time. This section, as applicable to the taxable year 1941, provides as follows:
(a) Personal Services. — If at least 75 per centum of the total compensation for personal services covering a period of sixty calendar months or more (from the beginning to the completion of such services) is received or accrued in one taxable year by an individual or a partnership, the tax attributable to any part thereof which is included in the gross income of any individual shall not be greater than the aggregate of the taxes attributable to such part had it been included in the gross income of such individual ratably over that part of the period which precedes the date of such receipt or accrual.
In an amended petition filed prior to the hearing the petitioner, in addition to the relief prayed for in his original petition, asked that an operating loss which he had sustained in 1943 be carried back to offset part of his 1941 income for tax purposes. The respondent contested his right to this operating loss carry-back and continued to oppose it until the trial of the case was well advanced, when the Commissioner conceded the right of the petitioner to carry back his 1943 operating loss. The case continued for the decision of the Court on the other tax questions involved, including petitioner's claimed privilege of the benefit of section 107. After the Court's determination that the petitioner was entitled to this benefit as to five items of his 1941 income, each party filed a computation' for entry of decision under Rule 50. The computation of the respondent disclosed that, by treating all of the commissions received in 1941 as income taxable in that year, petitioner's tax liability would be $214,088.27. It also disclosed that, by spreading the commissions ratably over the years in which they were earned, the aggregate of the taxes attributable to the commissions would be $216,391.79. Inasmuch as this latter amount was in excess of $214,088.27, the respondent's computation showed petitioner's tax liability to be $214,088.27, which, after deducting the amount of $41,151.26 previously assessed, left a deficiency of $172,937.01.
The petitioner agrees with the respondent that, if all of the commissions received from the five projects were treated as income taxable in 1941, his tax liability would be $214,088.27. He differs from the respondent, however, in his method of applying section 107. Whereas the respondent spread all five commissions ratably over the years in which the services were rendered, the petitioner included four of these commissions in his income for 1941, and spread only one commission of $321,268.29, from what is known as the Iowa-Nebraska project, over the years in which it was earned. The reason he adopted this procedure is that he had deductions, including a 1943 farm loss carry-back of $61,432.58, which were sufficient to absorb practically all of his 1941 income, with the exception of the Iowa-Nebraska commission. By treating four of the commissions as 1941 income and allocating the Iowa-Nebraska commission to the years in which it was earned, his computation shows a tax liability for 1941 of $124,727.84, and a deficiency for that year, after deducting the amount of $41,151.26 previously assessed, of $83,576.58.
The question raised by the petitioner's computation is this: Where a taxpayer appeals to this Court on the ground that he has been erroneously denied the right to compute his tax liability on certain commissions received in accordance with the provisions of section 107, and then proves that he received in 1941 five commissions on five separate and distinct projects representing in each instance services rendered over a period of sixty calendar months or more, is he, in computing his tax liability under the alternate methods provided for in section 107, required to spread all of the pleaded and proved long term commissions received in 1941 ratably over the years in which they were earned ?
We think that an analysis of section 107 and its purpose requires that this question be answered in the negative. This section was enacted to remove the hardship resulting from bunching long term compensation in one year. Senate Finance Committee Report, Revenue Bill of 1939, S. Rept. No. 648; 1939-2 C. B. 524, 528, 529; Revenue Bill of 1942, S. Rept. No. 1631; 1942-2 C. B. 504, 586, 587. The statute removes this hardship by permitting a taxpayer who receives long term compensation in one year to be treated the same as a taxpayer who receives compensation in the years in which the services are rendered and reports it as income in those years.
However, there is nothing in the statute which would compel the taxpayer to compute every item of his income under the provisions of section 107 when, as here, such computation would result in a greater tax than would be due if some of those items of income subject to section 107 relief were not so treated. The only directive contained in section 107 concerning the tax is that, after the taxpayer has, by proof, brought himself within its provisions:
The tax attributable to any part thereof which is included in the gross income of any individual shall dot he greater than the aggregate of the taxes attributable to such part had it been included in the gross income of 'such individual ratably over that part of the period which precedes the date of such receipt or accrual. [Italics supplied.]
In the case at bar, after the trial judge had determined just which portions of petitioner's 1941 income were subject to 107 relief and after the Commissioner had agreed that an operating loss carry-back for 1943 could be applied to petitioner's 1941 income, it developed that, if petitioner treated all portions of his 1941 income subject to section 107 as provided for in that section, he would owe a greater tax than if only one portion of his 1941 income were treated as authorized by section 107.
We find nothing either in the statutes or in the decision herein which compels petitioner to avail himself of section 107 as to any or all of his available income, and the fact that his right to do so has been established by judicial determination has not turned that right into an obligation.
The petitioner in this case has used the only method available to him to get the maximum benefit to which he is entitled under the provisions of section 107. As long as the question of the loss carry-back was litigated, the petitioner had no right to assume that he would be entitled to such a deduction from his 1941 income and, therefore, he was quite right in pressing all of his various claims for section 107 relief. After the Commissioner at the trial had conceded his right to a loss carry-back, the petitioner was still in a position where he could not select which of the items of section 107 income he could bring undex that section and which items his interest required to be taxed in full in 1941, because until the decision herein petitioner had no way ol knowing as to which items the Court would accord him section 107 relief. Had petitioner, during the trial, waived his right to section 107 relief on any of the particular items, he might well have guessed wrong and reserved to himself an item which subsequently the Court would refuse to recognize as being subject to 107 relief. The petitioner has, in our opinion, taken the only course that was open to him by delaying his election until after the Court's opinion herein, when he is at last in a position to know the full extent of his rights growing out of the trial.
This case is clearly distinguishable, therefore, from George J. Meyers Malt & Grain Corporation, 11 T. C. 383, relied upon by the Commissioner* In that case the taxpayer was seeking to obtain the benefit of the growth formula with respect to his excess profits tax base period income. The taxpayer sought disallowances of certain abnormal deductions during the years 1938 and 1940. The Commissioner had refused to disallow these deductions and the taxpayer in his petition alleged error in refusing to disallow the 1940 deductions, but said nothing about the 1938 deductions. The Commissioner, by answer, sought the disallowance of all abnormal deductions for both 1938 and 1940 if the 1940 deductions were disallowed. At the hearing the taxpayer introduced evidence to establish his right to the disallowance of the 1940 abnormal deductions, but the same evidence also established its right to the disallowance of the 1938 abnormal deductions. In deciding that the abnormal deductions for both years, under the circumstances, must be disallowed, the Court relied upon the provisions of section 711 (b) (1) and (b) (1) (K) (ii) which provide that when the "taxpayer establishes" its right to the disallowance of abnormal deductions the "adjustments shall be made." Since all of the provisions of the statute had been fulfilled by the taxpayer, the Court held that the disallowance of all abnormal deductions was a statutory mandate. It is at once obvious that neither the Court nor the petitioner is under such a statutory mandate herein.
We have held that where a remedial statute does not impose an obligation upon the taxpayer, the privilege of accepting the benefits of the statute rests wholly upon the taxpayer. Welch Grape Juice Co., 9 T. C. 786. Therefore, we conclude that petitioner's 1941 income should be taxed as set forth in petitioner's computation.
Eeviewed by the Court.
Decision will he entered in accordcmce with the conclusions reached in this supplemental opinion.