*1030 From 400 shares received in a recapitalization for 80 shares bought in several lots at different times and at different costs, taxpayer sold 250 which he intended to identify with the latest purchase, so advised his secretary who carried out the sale, and on his books there was contemporaneous entry of a loss computed by deducting the entire sale price from the purchase price of the shares last bought. Held, the shares sold were identified with those last bought and the first in, first out rule is not applicable.
*472 The Commissioner determined a deficiency of $2,430.72 in petitioner's income tax for 1930. The petitioner assails the use of the first in, first out rule in computing the gain from the sale of shares.
FINDINGS OF FACT.
The petitioner is a resident of Syracuse, New York. In December 1930 he sold 250 shares of Bank of Manhattan Co. out of 400 shares which he then owned. The sale price was $17,829.25. The 400 shares were the result of an exchange in November 1929, whereby he surrendered to the corporation 80 shares which*1031 he had theretofore acquired. These 80 shares were made up of 50 which he had bought in August 1929 for $43,250, 5 which he had bought in November 1928 for $2,403.83, and 25 which for simplicity may be regarded as bought in 1920 for $5,875. When he sold the 250 shares in question, he intended to sell those which were attributable to the 50 shares bought in 1929, told his secretary so, calling them the "high price shares", directed her by telegram to sell the shares "as directed", and she understood that he was selling the shares he had "paid $43,000 for." Contemporaneously with the sale, entries were made on his books of account showing a sale of 250 shares for $17,829.25 and a loss of $25,420.75.
OPINION.
STERNHAGEN: The Commissioner held that the shares sold were not susceptible of identification with any bought at a particular price, and that the first in, first out rule must therefore be used so as to use up first the earliest cost of $5,875, then the next cost of $2,403.83, thus leaving only the remainder to be applied against the last purchase of $43,250. The petitioner says that the shares sold could be identified with those last bought and that he did enough to establish*1032 such identity. Short of matching up certificates, which under the circumstances would have been an unreasonably cumbersome process, the petitioner did as much as might be expected to express an intent to sell the shares most recently bought, to communicate such intent to the person by whom the sale was to be executed, and immediately on his accounts to treat the shares sold as so identified. This satisfies the requirement of identity sufficiently to overcome the first in, first out rule, ; ; . Cf. .
The respondent's determination is reversed.
Judgment will be entered under Rule 50.