c33:Nos. 158, 166, 167

L. HAND, Circuit Judge
(concurring).
I agree: Spence could not hold Presley, unless Presley could hold Spence; and if Spence could not hold Presley, Presley could change his mind. The likelihood that Presley would not change his mind, before Spence accepted the offer, did not give Spence any “actual command over the income” to be taxed (Harrison v. Schaffner, 312 U.S. 579, 581, 61 S.Ct. 759, 761, 85 L.Ed. 1055); it gave him no more than high expectations that he could get such “actual command.” Had there been a shift in judicial decision favorable to Presley before Spence chose to accept, Presley would have been free to withdraw his offer; and indeed, there would have been_ nothing .even dishonorable in doing so, for that was precisely the risk that Spence meant to take, thinking it negligible. I lay aside any constitutional question: i. e. whether there can be an “amount realized” out of probabilities alone, however certain — though surely that is a question not wholly free from doubt — ; because, even assuming that there can be, Congress and the Treasury have never made any effort to make capital gains out of anything but legal claims to property, or property itself.

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