*1383OPINION.
SteRNhagen:The deficiencies in question were determined under section 302 of the Revenue Act of 1918, “ since,” as stated in the Commissioner’s notice, “ this amount is less than the amount computed under section 328.” The petitioner assigns as error (1) that the tax thus computed is excessive and the invested capital has not been determined, (2) that depreciation has been incorrectly determined as to both the property to be depreciated and the rate applicable, and (3) that special assessment under section 328 has not been made. The facts alleged in the petition were all denied in the answer.
From the trial and the briefs it is difficult to ascertain what relief the petitioner seeks and upon precisely what it relies to prove that its liability has not been correctly fixed. The determination of tax under section 302 does not involve a determination of invested capi*1384tal, and is presumably less than if determined with reference to such capital under section 301. It does not appear what the Commissioner used as the factors of invested capital or by the comparison of what figures he determined that the tax under section 302 would be less than under section 301. Furthermore, as the Commissioner applied section 302 because he found the tax thus to be less than under section 328, and the petitioner asks for assessment under section 328, there is further confusion in perceiving the significance of the issue as to invested capital. It may be that the petitioner believes that a correct computation of its invested capital under section 326 and the resulting ratio between it and correct net income would bring about a lower tax under section 301 than that found under section 302 or that hoped for under section 328. But this could only be established by evidence, upon which such comparison could be made. It is not -to be assumed. Nor could the Board make a finding as to a single factor of the statutory invested capital, such as the value of tangible property received for stock, without knowing whether this has been allowed or disallowed by the respondent or otherwise how such factor is related to the result sought to be reached.
Speaking more specifically, it appears that Kelly paid $50,000 in cash for one-half the stock at a par value of $5,000 and that for the other half of the stock the petitioner received both the assets of the Montross & Hardy Co., including whatever rights it had to the tangibles on the leased land, and the stock of that company. It does not appear what the Commissioner regarded as the value of property paid in for stock or shares or how much, if anything, was claimed or allowed as surplus, either earned or paid in. Supposing it true that title to the amusement structures on the land was legally sufficient to constitute them its assets and that when received by petitioner they were of substantial value, there is from this record no way of telling that the application of section 302 was wrong.
This will indicate the difficulty of ascertaining what are the petitioner’s rights and the necessity for sustaining the respondent in his use of section 302 instead of section 301 or section 328.
The evidence sufficiently establishes the reasonableness of an allowance of 10 per cent as an average rate of depreciation of amusement devices. This rate should be applied to not less than the amount of $92,290.66 stipulated as the cost of those acquired in 1917, and such additional amount, if any, as the Commissioner has determined as the value of the depreciable amusement devices acquired prior thereto. This additional amount we are unable to determine from the evidence. -
Judgment will he entered on 15 days’ notice, under Bule 50.