*3411 Income. - Entries in books of account when at variance with actual facts shall not be taken as basis for determination of income.
*1058 This proceeding results from the determination by respondent of a deficiency in income tax for the calendar year 1922, in the amount of $2,194.58. Error is assigned in that the respondent added to the income of the petitioner for the year in question the sum of $5,045.50 as commissions received from the Petroleum Producers' Syndicate.
FINDINGS OF FACT.
Petitioner is an individual with his office at 505 Crocker Building, San Francisco During the year 1922, he was associated as joint venturer with Bruce Fair and Ives E. Cobb in the development of certain oil lands in Southern California under the name of the Petroleum *1059 Producers' Syndicate. The three individuals acquired a small holding of land in a supposed oil field. They desired to drill an oil well on the land, but in order to do so it was necessary for them to secure additional capital. They conceived the idea of selling units representing*3412 an undivided one five-thousandths interest in the land. A number of units were sold at $100 per unit and thus sufficient capital was secured to proceed with the initial drilling operations. After a few of the units had been sold, Messrs. Elkins, Fiar and Cobb met and decided to discontinue their sale for the reason that the cost of selling was equal to 50 per cent of the amount received for each unit. It was decided to offer to themselves the right to purchase 100 units at $50 per unit. Petitioner agreed to and did take 100 units. Petitioner tendered his check for $5,000 in payment of same, but the bookkeeper advised that as a bookkeeping proposition it would be better to have the books show a purchase at $100 per unit and petitioner should offer his check for $10,000 and the bookkeeper would immediately return to him $5,000. This was done and reflected on the books as commissions paid.
Petitioner did not receive commissions to the extent of the $5,000 here in question from the Syndicate during the year 1922.
OPINION.
MILLIKEN: Respondent added to the income of petitioner, $5,000 as commissions paid to him by the Petroleum Producers' Syndicate. He was no doubt moved*3413 so to do because the books of account of the Syndicate reflected such a situation. Petitioner, as well as Cobb and Fair, testified that no sum was paid by the Syndicate to petitioner during the year as commissions. The bookkeeping transaction set forth in the findings of fact did not give rise to income or change the true facts of the case and the respondent was in error in adding the amount in question to the income of petitioner.
Counsel for respondent at the hearing of this cause attempted to show that the Syndicate had been allowed the sum here in question as a deduction in determining the distributive share to which petitioner was entitled. Such attempt was in furtherance of the alternative claim which he made that if we were of the opinion that the respondent was in error in adding the sum in question to the income of petitioner, there would, nevertheless, be a sum which should be added to income represented by an increased distributive share from the Syndicate.
We have no competent evidence as to the deductions allowed the Syndicate in the determination of the distributive share of the petitioner and that in itself precludes favorable consideration of the claim made*3414 by counsel for respondent.
Judgment will be entered under Rule 50.