dissent">Murdock, J.,

dissenting: The prevailing opinion interprets section 107 as requiring that the total compensation for the completed work (except up to 5 percent paid in advance) must be received in one taxable year. I find no such requirement in the section. The applicable provisions, paraphrased somewhat for simplicity, are as follows.:

In the case of compensation—

(a) received for personal services covering a period of five years or more,

(b) paid (or not less than 95 percent of which is paid) only on completion of such services, and

(c) required to be included in gross income for any taxable year beginning after December 31, 1938,

the tax attributable to such compensation shall not be greater than the total tax had such compensation been spread ratably over the period during which it was earned.

The requirement about 95 percent is in (b). Its purpose and effect is to prevent the application of this relief provision where more than 5 percent of the compensation has been paid prior to completion of the services for which it was paid. There is no requirement that 95 percent or any other percent be received in one year. The principal purpose of. (c) is to fix the first year for which the relief becomes applicable. The words therein, “any taxable year,” are not to be read as “any one taxable year.” The statute ought to be applied just as it is written.

The quotations in the prevailing opinion from the Keeble case, the regulations, and Mertens were obviously the product of minds not on this particular question. The change in the 1942 Act and the legislative history of that act support the view taken in this dissent. That is, the law had to be changed before it included a requirement that a certain percentage of the total compensation for the completed work had to be received in one taxable year. The change shows how clearly Congress could express that requirement when it wanted to, and it shows by comparison that Congress expressed no such requirement in the provision which is applicable here.

HaRkon and Opper, JJ., agree with this dissent.

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