44 T.C. 189">*189 The Commissioner determined deficiencies in income taxes against Chester and Doris Farrara for the years ended December 31, 1958, and December 31, 1959, in the amounts of $ 182.32 and $ 4,006.97, respectively. The deficiency for the year 1958 as determined by the Commissioner is not in dispute. The only question for decision is whether amounts unconditionally received by the owner of a retail men's clothing store in respect of merchandise to be selected and delivered at some later date must be included in income when received or whether the taxpayer may defer the inclusion of such receipts in income until delivery of the merchandise at a later date.

FINDINGS OF FACT

Most of the facts have been stipulated and are incorporated herein by this reference.

The petitioners, Chester and Doris Farrara, are husband and wife, residing in Reading, Pa. They filed joint Federal income tax returns on a calendar year basis for the year 1959 with the district director of internal revenue at Philadelphia.

44 T.C. 189">*190 During 1959 Chester Farrara (hereinafter sometimes referred to as 1965 U.S. Tax Ct. LEXIS 88">*90 petitioner) operated three separate businesses: (1) A restaurant known as the Hofbrau Restaurant, (2) a retail men's clothing store known as California Sport Shop, and (3) a retail women's clothing store known as Lady Casual Shop. The income from the Hofbrau Restaurant was computed on a cash receipts and disbursements method of accounting. The income from the California Sport Shop and the Lady Casual Shop was computed on an accrual method of accounting.

In 1959 the California Sport Shop and the Lady Casual Shop made sales by three different methods, cash, charge, and "suit clubs," hereinafter described. With respect to the operation of the Lady Casual Shop the cash sales, charge sales, and suit club receipts were included in income currently. With respect to the California Sport Shop, cash sales and charge sales were included in income when the sales were made. Payments in respect of suit club sales were credited to deferred income when received and not included in income until the merchandise was ultimately delivered to a customer.

Petitioner began the use of "suit clubs" in the California Sport Shop at least as early as 1955 and in the Lady Casual Shop in 1958. The method of1965 U.S. Tax Ct. LEXIS 88">*91 operating suit clubs begins with a definite period of weeks to be covered, normally 20, 30, or even 50 weeks. The customer or "member" of the suit club pays a fixed amount each week, usually $ 1. There is a weekly drawing when one member will win a suit or other merchandise, and at the end of the term (normally 50 weeks for the California Sport Shop) if his "number" has not been selected a member is entitled to a certificate which gives him the right to obtain merchandise at the store operating the suit club in an amount equal to what he has paid in.

If payments are discontinued at any time during the term of the California Sport Shop suit club the member receives a certificate entitling him to merchandise in the amount of his payments to date of discontinuance. The member is not entitled to receive a cash refund. Also, there are no restrictions as to the use of the receipts from the suit clubs, and the funds thus received by petitioner are commingled with other funds of the business.

Petitioner's Federal income tax returns for the years 1953 through 1957 were examined by revenue agents, as was the year 1958. No change was made in petitioner's method of accounting for suit club1965 U.S. Tax Ct. LEXIS 88">*92 transactions for any of those years.

OPINION

Petitioner received weekly amounts from customers of the California Sport Shop as "suit club" payments. In return for these payments the customers became members of the suit club and 44 T.C. 189">*191 would receive a certificate for merchandise either upon a weekly drawing or at the end of the club period; such certificate could be exchanged for merchandise at petitioner's store. Cash refunds were not obtainable and petitioner meanwhile had unrestricted use of the funds thus paid in. Petitioner reported these receipts as income only when the certificates were exchanged for merchandise.

Petitioner argues that since he had consistently used the same method of accounting for suit club receipts, which method was not disturbed upon audit for the pre-1959 years by the Commissioner's agents, the Government is in some way estopped now from refusing to accept petitioner's method. However, it is well established that there is no such estoppel against the Commissioner. Caldwell v. Commissioner, 202 F.2d 112, 115 (C.A. 2); Ezo Products Co., 37 T.C. 385">37 T.C. 385, 37 T.C. 385">391.

In accordance with American Automobile Association v. United States, 367 U.S. 687">367 U.S. 687,1965 U.S. Tax Ct. LEXIS 88">*93 and Schlude v. Commissioner, 372 U.S. 128">372 U.S. 128, we hold that the payments in question must be included in income when received by petitioner without restriction as to use, and that there is no statutory justification for treating them as "deferred" income to be reported at a later time. Cf. E. Morris Cox, 43 T.C. 448">43 T.C. 448.

Petitioner recognizes the force of the American Automobile Association and Schlude decisions, but argues that they are distinguishable since they involved receipts for future services whereas the present case is concerned with receipts in respect of future sales of merchandise. We think there is no merit to the alleged distinction. The theory underlying American Automobile Association and Schlude cases is fully applicable here.

In section 452 of the Internal Revenue Code of 1954, Congress provided for the deferral of prepaid income where amounts were received in connection with an obligation to render services, furnish goods or other property or allow the use of property, which extended beyond the close of the taxable year in which such amounts were received. Under that section, the deferral1965 U.S. Tax Ct. LEXIS 88">*94 system used by petitioner would have been acceptable for the computation of Federal income tax liability. However, in 1955 section 452 was retroactively repealed, and the law as it existed under the 1939 Code came back into effect. Pub. L. 74, 84th Cong., 1st. Sess., sec. 1(a), 69 Stat. 134. In discussing the inclusion of section 452 in the 1954 Code the Senate report (S. Rept. No. 1622, 83d Cong., 2d Sess., p. 301) stated that --

Under the 1939 Code, regardless of the method of accounting, * * * amounts are includible in gross income by the recipient not later than the time of receipt if they are subject to free and unrestricted use by the taxpayer even though the payments are for goods or services to be provided by the taxpayer at a future time. ¹ [Italics supplied.]

44 T.C. 189">*192 Section 452 of the 1954 Code was by its terms intended to apply to situations1965 U.S. Tax Ct. LEXIS 88">*95 involving goods and services alike. We find no reason for treating these situations differently under the law as it existed prior to the 1954 Code and as it exists today. Indeed, Congress felt that it was necessary in 1958 to pass specific legislation in order to allow publishers to defer recognition of income from subscriptions, which amounts are advance payments for goods, i.e., newspapers, magazines, or other periodicals. Pub. L. 85-866, 85th Cong., 2d Sess., sec. 28, 72 Stat. 1625, adding sec. 455 to the Internal Revenue Code of 1954.

In support of his position petitioner relies upon Veenstra & DeHaan Coal Co., 11 T.C. 964">11 T.C. 964, and Consolidated-Hammer Dry Plate & Film Co. v. Commissioner, 317 F.2d 829 (C.A. 7). Both cases are clearly distinguishable on the facts there presented, and while both were concerned with sales of goods, it is plain that the amounts involved were regarded as deposits, unlike the unrefundable amounts paid in the present case for merchandise to be selected and delivered at a later time.

In Fifth & York Co. v. United States, 234 F. Supp. 421">234 F. Supp. 421 (W.D. Ky.), 1965 U.S. Tax Ct. LEXIS 88">*96 the doctrine of the American Automobile Association and Schlude cases has been specifically applied to a situation involving sales of goods. In so doing the court stated as follows (at 424):

While 372 U.S. 128">Schlude, supra, pertained to unperformed services, the Court expressed its reluctance to extend deferral reporting of prepaid income because (1) it had construed in American Automobile Ass'n. v. Commissioner, 367 U.S. 687">367 U.S. 687, * * * the retroactive repeal of Section 452 (which had specifically permitted deferred reporting on payments for goods or services) of the 1954 Code as "reinstating long-standing administrative and lower court rulings that accounting systems of deferring prepaid income could be rejected by the Commissioner"; (2) Congress has taken a step-by-step approach "in granting the deferral privilege to only limited groups of taxpayers while exploring more deeply the ramifications of the entire problem"; and (3) it defers, where possible, under the long-established policy of the Court, to Congressional procedures in the tax field. These inter-related reasons, together with the fact that in 1958 Congress added Section1965 U.S. Tax Ct. LEXIS 88">*97 455 to the 1954 Code, thereby permitting publishers to defer receipt of income of prepaid subscriptions while refusing to permit income deferral by non-profit service organizations, show that both Congress and the Supreme Court are acting deliberately and cautiously on the problems of prepaid income deferral for goods as well as for services. Inasmuch as Congress has not expressly provided for deferral of income from the sale of goods or personal property and in view of the expressions of the Supreme Court in 372 U.S. 128">Schlude, supra, it is concluded that the Commissioner properly exercised his discretion * * *

The disallowance of petitioner's system of deferral was likewise a proper exercise of discretion by the Commissioner.

Decision will be entered for the respondent.