*4210 1. A partnership made a portion of its sales on the installment basis and kept its accounts on an accrual basis. Its income from installment sales can not be accurately determined and can only be estimated. Held, that the Commissioner correctly determined the distributive shares of the partners on the accrual basis.
2. Where accounts are so kept that taxable income can be accurately computed on the accrual basis, and can only be estimated on the installment basis, the accrual and not the installment basis is to be used.
*4 These are proceedings for redeterminations of deficiencies of $2,104.52 and $1,762.75 in income taxes for 1920, determined by the Commissioner to be due from the estate of Walter Tillman, deceased, and Herman Tillman, respectively. It is alleged that the respondent committed error in (1) the failure to consider amended partnership returns on the installment sales basis of Tillman Brothers, a partnership of which taxpayers were members; (2) the failure to recognize the method of accounting employed by Tillman Brothers, *4211 a partnership of which taxpayers were members, as one permitting return upon the installment basis; and (3) denial of a part of the business expense incurred in connection with certain Mexican property.
The latter assignment of error occurs only in the proceeding instituted by Herman Tillman and was waived at the hearing.
FINDINGS OF FACT.
During the year 1920 Walter Tillman and Herman Tillman were partners engaged in selling furniture and house-furnishing goods under the firm name of Tillman Brothers, at La Crosse, Wis. Walter Tillman died in October, 1925. The partnership did a wholesale and retail business. In the retail department merchandise was sold for *5 cash, on regular account, and on installment contracts, designated as leases, which provided that title should remain in Tillman Brothers until the total amount provided in the instrument was paid.
The terms of these leases varied from less than one year to five or six years - an average term was three or four years. No specific amount of initial payment was required on lease contracts, but the partnership endeavored to obtain an initial payment of at least 10 per cent of the contract price. The amount*4212 of deferred payments varied according to the amount of the sale and the customer's ability to pay.
The total sales in the year 1920 were $829,072.91. Of this amount the wholesale sales were $708,804.71, cash and regular charge sales $69,679.54, and installment sales $50,588.66. Of the installment sales made in 1920, $18,524.94 were paid within the taxable year.
The partnership kept its books on an accrual basis in 1920 and in subsequent years. Installment sales balances for 1919 and prior years were not carried forward as such, but were treated as closed transactions and carried in the accounts receivable.
On March 10, 1921, the partnership filed an original return for 1920 in which it reported income on the accrual basis. On May 26, 1921, an amended return for the calendar year 1920 was filed purporting to return the income from installment sales upon an installment sales basis. In arriving at its net taxable income from installment sales, the partnership considered only the installment sales made in 1920 and computed its income by considering as profit 50 per cent of the payments received in 1920 from the installment sales made within that year.
The original returns*4213 of the individual partners for 1920 reported the distributive shares as shown by the original partnership return for 1920. The partners also filed amended returns in which they reported their distributive shares as shown by the amended partnership return for 1920. The Commissioner computed the income of the taxpayers from the partnership upon the basis on which its books of account were kept and determined the deficiency accordingly.
The total cost of goods sold in 1920 (wholesale and retail) may be determined from the books of the partnership, but there was no segregation of the cost of goods sold at wholesale and goods sold at retail or on installment sales. The partnership books in 1920 reflect the gross cash receipts from installment sales made in prior years, and the years of the sales to which these receipts apply are ascertainable therefrom.
When it was necessary to repossess goods sold under the installment lease, the unpaid balance on the lease account was credited to the customer's account and the goods so repossessed were taken in *6 and charged to the merchandise account at the unpaid balance regardless of original cost. Such goods were resold at the best*4214 price obtainable and sales account credited with the amount. It is not possible to determine that proportion of the installment payments received in 1920, which the total profit realized or to be realized when payment was completed bore to the total contract price.
OPINION.
PHILLIPS: The third assignment of error was raised only in the proceeding instituted by Herman Tillman. It was waived at the hearing and no evidence was submitted in support of it. The determination of the respondent is, therefore, sustained as to this issue.
In the first and second assignments of error petitioners contend that they are entitled to return installment sales in the year 1920 on an installment basis, and that the respondent erred in not considering the amended return filed on that basis in 1921 for the calendar year 1920.
Section 1208 of the Revenue Act of 1926 provides that the provisions of subdivision (d) of section 212 of said Act shall be retroactively applied in computing income under the provisions of the Revenue Acts of 1916, 1917, 1918, 1921, and 1924, or any of such Acts as amended. Section 212(d) provides in part as follows:
Under regulations prescribed by the Commissioner*4215 with the approval of the Secretary, a person who regularly sells or otherwise disposes of personal property on the installment plan may return as income therefrom in any taxable year that proportion of the installment payments actually received in that year which the total profit realized or to be realized when the payment is completed, bears to the total contract price.
It is clear that the partnership of Tillman Brothers regularly sold or disposed of personal property on the installment plan during the taxable year, and is entitled to return as income in 1920 that proportion of the installment payments actually received in that year which the total profits realized or to be realized when the payment is completed, bears to the total contract price, if their books of account contain adequate information, and were kept so that income can be accurately computed on the installment basis in accordance with the provisions of section 212(d) of the Revenue Act of 1926. In , we had occasion to consider the application of the statute and some of the accounting problems which must be met before it can be said that the income is*4216 computed as directed by the statutes.
It is incumbent upon one seeking the benefit of the statute to establish, among other things, what portion of the payments received *7 during the taxable year is profits from installment sales and what portion represents a return of the cost of the goods sold. This the petitioners have failed to do, and it is admitted that this information can not be obtained from the books of account of the partnership. There was no segregation in the partnership books of account of the cost of goods sold on the installment plan from goods sold at wholesale, for cash, or on account, and the petitioners are unable to establish the total profits realized or to be realized from installment sales upon which payments were made during the taxable year. Unlike , the installment sales of this partnership were more or less incidental. Petitioner's principal business was at wholesale. Of sales of $829,072.91 in 1920, only $50,588.66 were on the installment basis. It was estimated by a witness that on installment sales, 50 per cent of the sales price represented profit and 50 per cent cost of the goods*4217 sold. Petitioners ask that we compute their income upon this estimate. We see no basis on which we might justify a computation of income based upon an estimate when the income can be accurately determined upon the basis on which the accounts are kept. Furthermore, we are not satisfied that the estimate made is substantially correct. It is based upon the premise that goods sold on the installment sales basis were sold at double their cost and the conclusion is then reached that one half of all amounts collected represents gross profit. Even if the premise is correct, the conclusion does not follow, since the repossession of the goods sold or the loss of the account and of the goods may substantially affect the profit which would normally result if the sale were carried through. Under the statute consideration must be given to the total profit realized as well as to the anticipated profit.
Petitioners have attempted to return on the installment sales basis only taxable income derived from the installment sales made in the taxable year, without taking into consideration income from sales made in prior years. This they may not do. *4218 ; ; . Not only must they consider income actually received during the year from installment sales made in prior years, but they must determine the net profit from sales made in prior years which is realized in the taxable year. The system of accounting employed does not contain the information necessary to permit this to be done.
Decision will be entered for the respondent.