*1243OPINION.
Green:The petitioner contends that, since he was paid no salary, the amount of $5,000 should not be added to his net income. With this contention we are in accord. We can find no justification for the addition of $5,000 to the petitioner’s net income. In making the computation the parties agreed that the net income from the wholesale drug business should be ascertained by taking 5 per cent of the gross sales. In so agreeing the parties acted in good faith and in the light of the Commissioner’s records of the profits of similar concerns. It is not enough to say that other comparable concerns paid a salary of approximately $5,000. The fact remains that no such salary was drawn by this petitioner and that such amount was improperly added to income.
*1244The Commissioner concluded that he was unable satisfactorily to determine the petitioner’s invested capital and computed the tax in accordance with the provisions of section 210 of the Revenue Act of 1917. The petitioner contends that he can not establish, for invested capital purposes, the value of certain assets. He contends, however, that he can and has established for invested capital purposes, the value on January 1, 1914, of a part of the property paid in to the business prior to that time, and that he should not be deprived of the right to have his profits tax computed on the invested capital which he is able to establish merely because he used in his business other assets the value of which he can not establish. In this we think his position is correct. The special assessment provisions of the various acts were intended to provide, among other things, an equitable means of computing the tax in cases in which the invested capital which could be established was so low as to result in an excessive tax. If, however, a taxpayer is content to have his tax computed upon the low invested capital, there is no reason why the tax should not be so computed. The petitioner herein has established his right to an invested capital of at least $146-,710, this amount being the total of the costs or values set forth in the findings of fact, plus the amount of the accounts receivable. The latter amount we include without regard to the bills payable, because it is obvious that the value of the merchandise on hand far exceeded the accounts payable.
Judgment will he entered on 15 days’ notice, under Bule 50.
Milliken dissents.