dissenting: I concur in the Opinion of the Court with respect to all of the issues except the first, which relates to the determination of the taxable income derived by each of the petitioners from the Jungle Novelty Company, a partnership engaged in conducting a gambling casino, during the years 1948 and 1949. With respect to that issue I respectfully dissent. As the trial Judge who presided at the hearing, however, I wish to make it clear that I disagree with the views of the majority principally with respect to the theories by which they have arrived at their conclusions and not as to any evidential matters depending upon the credibility of the witnesses. Specifically 1 wish to affirm that I do not accept as credible the self-serving and uncorroborated testimony of the petitioners as to the correctness of their books or that the slips, which were made available to the attorney-bookkeeper, and on the basis of which he kept the books of the partnership, accurately set forth the results of their daily computations showing the amounts won or lost by the partnership.
With respect to the first and principal issue, it is my view that the majority Opinion does not squarely meet the contentions of the petitioners. To the extent the majority hold that petitioners have not established that the determinations made by respondent are not arbitrary and to be disregarded, I disagree.
As I understand them, petitioners’ contentions, both at the hearing and on brief, are: (1) That respondent was not justified in disregarding the partnership books and returns and in computing the taxable income by some other method; (2) that the method employed by respondent is unreasonable and the deficiencies determined by him arbitrary, without foundation in fact, and invalid; and (8) that where the evidence establishes that the determination of the respondent is arbitrary and invalid, petitioners are not required to show that they owe no tax or the correct amount. Petitioners cite and rely upon Helvering v. Taylor, 293 U. S. 507; Durkee v. Commissioner, (C. A. 6) 162 F. 2d 184; Gaspar v. Commissioner, (C. A. 6) 225 F. 2d 284; and others.
Respecting petitioners’ first contention, the books and returns clearly do not reflect the income of the partnership and consequently the income of the individual petitioners.
Certainly, with respect to the horsebook, the partnership had, in the form of the betting slips, a record of the total amount of bets taken each day, which represented its gross receipts from this source. It also had, in the form of the betting slips on which notations were made of the winning bets and the customers’ copies of such slips which were turned in by them upon collecting their winnings, a record of the total amount of “wins” paid out. It retained none of this substantiating data and neither made nor retained any other record of such amounts. While the nature of such games precludes the making of a record of each bet placed, the partnership did have, in the form of the results reported by the operators and recorded on an adding machine tape, a record of the daily amounts won or lost from the operations of the poker tables and the dice, roulette, and chuck-a-luck games, and at least twice a week from the slot machines. It retained none of the adding machine tapes which would have shown its gross receipts or losses from these sources, nor any other record of such amounts. The partnership also knew the number of, and price paid for, bingo cards each day which represented its gross receipts from this source. The difference between the amount received and the amount paid out as prizes was also reported to the partnership each day by the operators in charge of that activity, and the amount of gain or loss recorded on the adding machine tape along with that of the other activities.
By recording and reporting only “net winnings” or “net losses” petitioners determined for themselves the amount of their allowable deductions for losses, without any opportunity or possibility of the respondent checking them as the statutes and regulations contemplate lie should have. Cf. Fairchild v. United States, 186 F. Supp. 753, reversed on other grounds (C. A. 5) 240 F. 2d 944. “When a deduction is claimed, the government has an undoubted right to demand a full disclosure of the facts on which the claim is based, for otherwise it would be at the mercy of the unscrupulous taxpayer.” O'Laughlin v. Helvering, (C.A., D.C.) 81 F. 2d 269.
Accordingly respondent was justified in undertaking to compute the income of the partnership and of petitioners by some other method which would clearly reflect the income. Sec. 41, 1. R. C. 1939.
With respect to petitioners’ second contention, in my opinion they have sustained their burden of proof in overcoming the presumptive correctness of respondent’s determination. Although this may not have been done on petitioners’ case in chief, it is my view that it was certainly done when respondent called the revenue agent as his own witness and opened him up to cross-examination. At this point I think the burden of going forward shifted to respondent to establish by competent evidence, the additional facts upon which he relied in arriving at the deficiencies finally determined by him. This he did not do. Our determination is to be made from the entire record.
In the case of the horsebook, respondent’s agent first estimated the average amount of bets placed each day on the basis of estimates made by certain employees of the Jungle Inn engaged in that activity. He then estimated that the partnership realized earnings or net winnings equal to 12 per cent of the gross amount bet. By multiplying the average daily take by the known number of days the horsebook operated, he computed what he determined to be the amount realized on the horsebook for each of the years 1948 and 1949. Income from the dice tables was computed on the basis of 10 times the total salaries paid to the employees operating a single dice table. The amount realized from the slot machines was computed by first estimating the average amount placed in the slot machines by players each day. This estimate was based upon estimates given by employees engaged in making change. (Respondent’s agent then estimated that the machines retained 79 per cent of the gross amount played and that this 79 per cent represented the partnership’s net winnings from this activity. Based upon an admittedly arbitrary estimate of the aggregate amount that would be realized over a full year from the operation of the poker tables, roulette, and chuck-a-luck, and the known number of weeks the Jungle Inn was in operation, he computed the amount realized from those three activities during 1948 and 1949. Based upon statements made by certain employees engaged in operating the bingo games, respondent’s agent concluded there was no profit or loss by the partnership from this activity. (Respondent determined the partnership net income for 1948 and 1949 by adding the estimated profits on the various activities and subtracting the total amount of expenses claimed by the partnership.
The formulas, 12 per cent of gross amount bet for computing winnings on the horsebook, 79 per cent of gross amount played for computing winnings from the slot machines, and 10 times salaries paid for computing winnings from the dice games, were furnished respondent’s agent by his supervisor, the bases for which were unknown to the agent and are not disclosed by the record herein. Cf. Morris Nemmo, 24 T. C. 583, on appeal (C. A. 6); H. T. Rainwater, 23 T. C. 450.
Undoubtedly, because of the lack of adequate records maintained by the partnership or by petitioners individually, respondent was faced with a difficult task of determining with reasonable accuracy the income of the partnership and of petitioners. Lacking information on which, he could predicate any other method, such as the net worth and bank deposits methods, respondent resorted to the method described above. While no particular method is prescribed, the method adopted must be one that will clearly reflect the income, Bradstreet Co. of Maine v. Commissioner, (C. A. 1) 65 F. 2d 943, reversing in part 23 B. T. A. 1093, and, as stated in Mount v. Commissioner, (C. A. 2) 48 F. 2d 550, “[tjhere must be a limit beyond which the presumptive correctness of the Commissioner’s determination may not be stretched in order to defeat a taxpayer.”
Considering all the facts and circumstances presented herein, I would hold that the method adopted by respondent is not reasonable and that the deficiencies determined by him are without foundation in fact, and therefore to be disregarded. Helvering v. Taylor, supra; H. T. Rainwater, supra.
See also Thomas v. Commissioner, (C. A. 1) 232 F. 2d 520; Gaspar v. Commissioner, supra; Thomas v. Commissioner, (C. A. 6) 223 F. 2d 83; and Wilson Coal Land Co. v. Commissioner, (C. A. 4) 87 F. 2d 185, in each of which Memorandum Opinions of this Court were reversed and the cases remanded for further proceedings; and Durkee v. Commissioner, supra, remanding 6 T. C. 773.
I do not agree with petitioners’ third contention, however. Although, in my opinion, petitioners have sustained their burden of overcoming the presumptive correctness of respondent’s determination, the deficiencies determined by respondent are merely to be disregarded. The question remains whether, on the basis of the evidence presented, petitioners are liable for any deficiencies in income tax and, if so, how much.
The majority Opinion has arrived at certain amounts which they say represent net income received by the partnership from the various gambling activities. I would employ a different approach and arrive at somewhat different amounts which, to me, are more readily supportable.
It is well established that where a taxpayer seeks a deduction, the burden is upon him to prove not only that he is entitled to it but also the amount of it. Burnet v. Houston, 283 U. S. 223; Helvering v. Independent Life Ins. Co., 292 U. S. 371; New Colonial Co. v. Helvering, 292 U. S. 435. See also Helvering v. Taylor, supra, wherein, after referring to the burden upon the taxpayer, in a suit to recover taxes paid, to show the amount to which he was entitled, the Supreme Court said: “For like reason the burden is upon the taxpayer to establish the amount of a deduction claimed.” Accordingly the burden was upon the petitioners to establish not only the right to deduct the “losses” sustained in the gambling operations of the partnership but the amount thereof. The self-imposed impossibility of proving the material facts upon which the claim rests does not relieve the taxpayer of his burden of proof. Burnet v. Houston, supra.
In their individual income tax returns petitioners set forth their distributive shares of the net income shown on the partnership returns. The partnership returns reported as gross receipts at line 1 under the general heading “Geoss Income” the amounts of $435,242 and $355,258, respectively, for the years 1948 and 1949. The same figures were set forth, at line 13 under the same general heading, as its total income. Under the general heading “Deductions,” at lines 14 to 24, inclusive, were set forth expenses, such as wages, rent, taxes and licenses, utilities, supplies, race wires, and cab fares, totaling $303,032 and $259,597, respectively, for the years 1948 and 1949. The net income reported by the partnership for the years 1948 and 1949 was $132,210 and $95,661, respectively.
The amounts returned as gross receipts in fact represented the difference between the total winnings and losses as shown on the books maintained for the partnership by the attorney-bookkeeper. The books for the year 1948, having been destroyed in the raid conducted by the State officials on August 12, 1949, are not available. The books for the year 1949, however, are available and were made a part of the record herein. These books show that the partnership had total winnings during the year 1949, at least in the amount of $424,-766. The partnership books for the year 1949 also set forth as losses the total amount of $69,508. It is the difference between these two figures ($424,766 less $69,508 equals $355,258) which the partnership reported as its gross receipts and gross income for the year 1949. When considered together, it is clear from the partnership books and returns that petitioners are claiming the right to deduct the sum of $69,508, as gambling losses, for the year 1949.
Section 23 (h) of the Internal Revenue Code of 1939 provides that, in computing net income, losses from wagering transactions, to the extent of the gains from such transactions, shall be allowed as deductions from gross income. Respondent has not questioned the right of petitioners to deduct gambling losses but does contend that petitioners have not sustained their burden of establishing the amount of such losses. In this respect I agree with respondent.
The total winnings of the partnership for the year 1949 were at least $429,970.70. This is the figure shown on its books (which may be treated as an admission against interest), plus $5,204.70 found in the slot machines when seized by the State officials. In finding such amount I am aware of the fact that, due to the practice of deducting losses from winnings, or vice versa, and entering on the books only the resulting difference, the total winnings could well have been, and probably were, larger.
The question of the amount of losses sustained by the partnership is essentially one of fact to be determined from the entire record. H. T. Rainwater, supra. I do not doubt that the partnership sustained some losses with respect to the horsebook and perhaps, on some occasions, with respect to bingo, dice, chuck-a-luck, and roulette. Since its take from the poker tables was a percentage of each “pot,” it sustained no losses from that activity and it is extremely doubtful that the slot machines ever showed a loss on any day of operation. Implicit in the partnership’s method of bookkeeping is the fact that it offset an unknown amount of claimed losses for every day of operation, both on days when its books listed only net winnings and on the days when they listed only net losses. It would serve no useful purpose to repeat the facts here. It is sufficient to say that having carefully considered all the evidence presented, for the reasons heretofore discussed, I find it insufficient to establish, even under the Oohan rule (Cohan v. Commissioner, (C. A. 2) 39 F. 2d 540), the amount of losses, if any, sustained by the partnership in excess of those thus taken. In so doing I give no weight to the self-serving and uncorroborated testimony of the petitioners as to the correctness of their books.
In summary, I would find and hold that, during the year 1949, the partnership, Jungle Novelty Company, received as winnings from gambling operations the amount of at least $429,970.70; that the evidence is not sufficient to establish the amount, if any, of its gambling losses in excess of those implicitly taken; that it incurred expenses in the amount of $259,597.75; and that its net income distributable to the petitioners in proportion to their respective partnership interest was $170,372.95.
The situation with respect to the year 1948 is somewhat different from 1949, due to the fact that the partnership books maintained by the attorney-bookkeeper for 1948 were not available. It is possible, however, to make a reasonably accurate estimate with respect to winnings and the amount claimed as losses from the evidence available and by comparison with the operations for 1949. The evidence shows that for 1948, as in the case of 1949, the amount shown on the partnership return as gross receipts represents the amount of its winnings after deduction of its claimed losses. The average weekly net income reported on the partnership returns was $2,938 for 1948 ($132,210 divided by 45), and $2,989 for 1949 ($95,661 divided by 32), or substantially the same for each year. The average weekly income reported for 1948 was $9,682 ($435,242 divided by 45), and for 1949 was $11,102 ($355,258 divided by 32). This difference could have resulted from the taking of greater losses in 1948 than 1949, especially since it is noted the average weekly expenses reported for 1948 ($303,-032 divided by 45 equals $6,734) was less than those for 1949 ($258,-597 divided by 32 equals $8,081). The average weekly losses claimed for the year 1949 were $2,172 ($69,508 divided by 32). It is reasonable to assume that the average losses taken for 1948 were at least $2,000 per week, and that the total winnings for the 45 weeks the partnership operated in 1948 were at least $525,242 ($435,242 plus $90,000).
In summary, I would find and hold that, during the year 1948, the partnership, Jungle Novelty Company, received as winnings from gambling operations the amount of at least $525,242; that the evidence is not sufficient to establish the amount, if any, of its gambling losses in excess of those implicitly taken; that it incurred expenses in the amount of $303,032; and that its net income distributable to the petitioners in proportion to their-respective partnership interests, was $222,210.
As previously indicated, I concur in the Opinion of the Court with respect to all the issues except the first. For the reasons stated above I respectively dissent with respect to the first issue.