*1276OPINION.
Smith:The taxpayer’s sole allegation of error is that the Commissioner erred in determining its profits-tax liability for the years 1918 and 1919 under the provisions of section 301 of the Revenue Act of 1918, whereas, in view of all the existing circumstances, such determination should have been made under the provisions of section 328.
As grounds in support of its allegation of error the taxpayer sets out in its petition the following alleged abnormalities affecting its net income and invested capital:
(a) That in each of the years 1918 and 1919 salaries paid to its officers were abnormally low as compared with those paid to officers by other concerns engaged in the same trade or business.
(&) That because of its form of organization and the manner in which it acquired certain real property and other fixed assets on March 16, 1918, it has been deprived of .a depreciation allowance based upon true values and has been limited to such an allowance based on book values which are less than the true values.
(o) That it has a valuable good will which can not be included in invested capital.
(d) That tangible property conveyed to it at a value greatly in excess of its book value can not be included at its true value in its invested capital.
In addition to the foregoing the taxpayer sets forth that the cost to the previous owners of the real property and other fixed assets ac*1277quired by it on March 16, 1918, is unknown; hence, its invested capital can not be satisfactorily determined.
After giving careful consideration to all the evidence before us, we are unable to find that the alleged abnormalities affecting net income and invested capital actually existed, or that the invested capital can not be satisfactorily determined, or that the invested capital as determined by the Commissioner is not correct.
The first alleged abnormality affecting net income is that the salaries paid to its executive officers, four in number, for 1918 and 1919, were considerably lower than those paid by representative concerns engaged in the same line of business. The only evidence before the Board bearing on this matter is that contained in the depositions on written interrogatories, addressed to the executive officers of four concerns engaged in the same line of business as the taxpayer. These depositions contain about all the essential matter which is necessary to determine whether the concerns, with respect to which the matter relates, are representative concerns with which a fair comparison could be made if the profits-tax liability of this taxpayer is to be determined by resort to the means afforded by section 328. They were submitted primarily for the purposes of such comparison.
For the purposes of comparison we set out below a tabulation showing the average net sales, average gross income, and average salaries paid to executive officers, with respect to the four concerns referred to in the depositions, as well as the same data with respect to the taxpayer:
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The above comparison does not sustain the taxpayer’s contention that the net income of the two years has been abnormally affected by virtue of low salaries paid to its executive officers in comparison with the salaries paid by concerns which it has itself selected as being representative. Since we have before us no other evidence tending to show that normal salaries for the years under consideration were in excess of those actually paid by the taxpayer, we conclude that the taxpayer has failed to show any abnormality in this resj>ect.
The second alleged abnormality affecting net income is apparently based upon a misapprehension on the part of the taxpayer as to the *1278scope and limitations of section 331 of the Revenue Act of 1918. The provisions of that section are purely a limitation with respect to invested capital and are in nowise applicable to asset values for purposes other than invested capital. A corporate taxpayer is entitled to a depreciation allowance, with respect to assets acquired, subsequent to March 1,1913, predicated upon the actual cost of those assets, or the fair value thereof, at the date the assets were acquired.
In the instant appeal the Commissioner has predicated the depreciation allowance made by him, with respect to the depreciable assets acquired by the taxpayer on March 16, 1918, upon the cost of those assets to the taxpayer, the Commissioner’s measure of the cost, being the actual consideration charged to the taxpayer. There is no evidence before us which satisfactorily demonstrates that the assets had any greater value at the date of acquisition than the cost, thereof as determined by the Commissioner.
The taxpayer alleges that an abnormality exists affecting its invested capital because of the limitations of section 326 (a) (4) of the Revenue Act of 1918, applicable to intangibles. In other words, it, claims that it acquired a valuable good will upon incorporation in-. Í915, for which it issued no stock and for which it has not received any benefit in the computation of invested capital.
We do not think that the evidence proves a cash value of the good will at the time that it was acquired in 1915. The average earnings, of the partnership for the five-year period 1910 to 1914 were $82,787.21, and the average amount of capital employed in the business during the same period was $831,799.99. We are not informed, whether the net earnings are computed after an allowance has been made for salaries of partners; but, even if this be the case, the return on capital employed in the business during the five-year period was less than 10 per cent per annum, and, in our opinion,.. the evidence offered as to the value of the good will acquired in-1915 is not sufficient to prove a cash value. We therefore are of the.opinion that the contention of the taxpayer upon this point is not well founded.
The taxpayer alleges a second abnormality affecting invested capital in that, because of the limitations imposed by section 331 of the Revenue Act of 1918, it may not include in invested capital the actual value of.the assets acquired by it on March 16, 1918, but that such valpe as may be included is limited to the cost of those-assets to the previous owners.
The evidence does not show, however, that the assets paid in for shares of stock on March 16, 1918, were in excess of the value-allowed as paid-im capital by the Commissioner, or in excess of the value at which the previous owners could have included them as invested capital.
*1279The last ground that the taxpayer advances as a reason for the necessity of determining its profits tax for both years under the provisions of section 328 is that, since the costs to the previous owners of the assets which it acquired on March 16, 1918, are unknown, and since these assets may be included in invested capital only in an amount not exceeding such costs, its invested capital can not be satisfactorily determined.
During the course of the hearing but a single witness was placed on the stand. Counsel for taxpayer elicited the testimony that the costs of the properties referred to in the preceding paragraph were unknown. That testimony, as far as it goes, is, of course, entitled to consideration. But it is not conclusive, and we are not satisfied that those costs are not susceptible of ascertainment from 'various sources. Furthermore, the costs written upon the books of the partnership in 1909 were placed there after careful investigation and deliberation. They were so entered with the full knowledge and sanction of the members of the firm, and at a time when their minds could not have been influenced by any advantage to be gained in the way of reduced taxation by including appreciated values in their asset accounts. ■ If the amounts so entered on the partnership books were not the actual costs, the taxpayer has not adduced any conclusive evidence to show that such is"the fact.
We point out, further, that no evidence has been presented to us that the consideration paid by this taxpayer for the assets referred to above was greater than the maximum values which may be included in invested capital with respect to those same assets under the provisions of section 331 of the statute. In other words, the Commissioner has admitted that these assets may be included in taxpayer’s invested capital under the provisions of section 326 at their actual cash value at the date of acquisition, to wit, $417,000, which amount is equivalent to the consideration paid therefor by the taxpayer. Taxpayer has failed to demonstrate that this value is greater than the maximum value which may be allowed under the limitation prescribed by section 331.
In view of all of the foregoing, we conclude that the taxpayer has failed to prove the material averments of its petition.
TRAMmell dissenting.