*423OPINION.
MtjRdock :The Commissioner early established the rule that “ when shares of stock in a corporation are sold from lots purchased at different-dates and at different prices and the identity of the lots can not be determined, the stock sold shall be charged against the earliest purchases of such stock.” Art. 58, Regulations 74; Towne v. McElligott, 274 Fed. 960. Section 115(c) of the Revenue Act of 1928 provides that amounts distributed in partial liqúidation of a corporation shall be treated as in part or full payment in exchang'd for the stock and the gain shall be determined under section 111. The petitioners do not attack the rule nor claim that it does not apply to stock canceled in liquidation of a corporation: They contend that their shares canceled can be identified and the first in, first out rule does not apply. The Commissioner has held that the ■ identity of the shares canceled can not be determined and his determination must be approved unless the petitioners have produced evidence showing the identity of the shares canceled.
' Courtenay D. Allington relies principally upon his testimony that he knew of the Commissioner’s first in, first out rule and intended to have canceled his lot of 47 shares in its entirety and 10.33 shares from his lot of 100 shares in order to realize a minimum gain for tax purposes. He argues that the certificate for .47 shares would not have been turned in by him if he had not intended to have those shares canceled. But the method used by him in reporting his gain on his income tax return made shortly afterward does not indicate that such was his intention. On the contrary, it indicates that he had no such intention. Furthermore, the petitioner filed an original petition and two amended petitions, and only in the amended petition filed on the day of the hearing does-he suggest.and pray for a recomputation based upon thé cost of the 47 shares and the 10.33 shares. There may have been a different reason- for turning in all outstanding certificates. The name of the corporation was changed on October 5, 1928, and the corporation may have desired to issue new certificates bearing the new name. This point was not called to the.attention of the witness and it may be that there was no such change made. Still, for some reason, all certificates were turned in, 39 percent of the stock was canceled, and new certificates were issued. If the witness intended that all of his 47-share lot should be canceled and only 10.33 shares of his 10:0-share lot, he never did anything to see that his wishes were carried out. A mere intention to sell certain shares is riot sufficient to identify the shares actually sold. Skinner v. Eaton, 34 Fed. (2d) 575; affd., 45 Fed. (2d) 568; certiorari denied, 283 U. S. 837; A. D. Geoghegan, 31 B. T. A. 93; Mary E. Horner, 28 B. T. A. *424360; affd., 72 Fed. (2d) 407; Mickler Holding Co., 29 B. T. A. 300; Gommissioner v. Merchants & Manufacturers Fire Insurance Co., 72 Fed. (2d) 408; Snyder v. Commissioner 73 Fed. (2d) 5, affirming 29 B. T. A. 39. The petitioner simply turned in both certificates and the impossibility of determining which particular shares were canceled and which were reissued in the new certificate is obvious. The shares went into hotchpotch and all identity was lost. The application of the Commissioner’s rule under such circumstances seems entirely warranted. The rule is .fair and reasonable. Snyder v. Commissioner, 54 Fed. (2d) 57, affirming 20 B. T. A. 778; Skinner v. Eaton, supra; Burdett Stryker, 21 B. T. A. 561; Towne v. McElligott, supra; Commissioner v. Merchants & Manufacturers Fire Insurance Co., supra. It has been used for many years. The petitioner’s remaining shares carry the remaining cost. The Commissioner might have adopted a rule of averaging the cost of all shares, but he did not, and, since the rule he adopted is a reasonable one, we can not reject it and apply another in its place. Skinner v. Eaton, supra. Cf. David Stewart, 17 B. T. A. 604.
The record is not as complete in regard to Leslie E. Allington as it is in the case of Courtenay D. Allington. However, counsel do not seem to be in dispute in regard to the facts and seem to agree that there are no material differences in the facts in the two cases.
Reviewed by the Board.
Decisions will be entered for the resfondent.