*3771 1. In the years 1920 and 1922 the petitioner received cash gifts from his father in the respective amounts of $2,550 and $8,800. Held, that the respondent erroneously added the amounts thereof to taxable income for such years.
2. For normal-tax purposes, interest on Liberty bonds should be eliminated from taxable income for each of the years involved.
3. Petitioner did not wilfully understate his income for any of the years involved, and the penalties for fraud are disallowed.
*565 The respondent has asserted deficiencies for the years 1920, 1921, 1922, and 1923, in the respective amounts of $1,545.21, $576.95, $1,581.76, and $404.16, and, for the same years, has imposed fraud penalties in the respective amounts of $772.61, $282.48, $790.88, and $202.08. The petitioner alleges 24 errors on the part of the respondent, of which those most material are, (1) the inclusion in gross income for the years 1920 and 1922 of certain amounts which are asserted to have been gifts; (2) the inclusion in each of the taxable years of amounts asserted to have*3772 been received as interest on Liberty bonds, and; (3) the imposition of fraud penalties in the amount of 50 per cent of the total deficiencies in income tax determined for the several years in question.
FINDINGS OF FACT.
The petitioner is a resident of Missouri, and has been engaged in the practice of general internal medicine at Kansas City since the year 1907. He is a graduate of the School of Medicine of the University of Kansas, and made further preparation for his profession by taking two years of postgraduate work in medicine at the University of Virginia.
During the taxable years the petitioner was very busy in his practice and his professional income was substantial, but was received for the most part in small amounts. His charges were moderate, *566 usually $2 for an office treatment and $3 for a visit to the home of a patient, although he sometimes received as much as $5 for an outside call. He kept no regular set of books. He was in receipt of funds in each of the taxable years not earned in his practice.
It was the custom of the petitioner to have the bulk of his fees for professional services collected by a secretary, but some payments were received*3773 by him personally. All receipts for such services, whether paid to his secretary or to himself, were deposited in a bank checking account, and were evidenced by entries on an ordinary bank passbook. When the petitioner received money from other sources than professional fees, which he did not regard as income, such receipts for the most part were deposited in his bank accounts and bank receipts in the form of duplicate deposit tickets were taken therefor. No part of the money received by the petitioner in excess of the amount of fees for professional services was entered in his bank passbook. A large part of the expenses incident to the practice of his profession were paid by the petitioner by giving checks on his bank account; but some such expenses, usually in small amounts, were paid in cash.
One of the sources from which the petitioner received cash, other than fees for professional services, was the gift of checks from his father. During the taxable years he received approximately monthly a check of $60 from his father. He did not deposit such checks in his bank account but obtained cash therefor and with such cash paid many of his smaller office expenses, using the remainder*3774 for personal purposes. In addition to the monthly allowance above set out, the petitioner in 1920 and 1922 received cash gifts from his father in the respective amounts of $2,550 and $8,800. He deposited these amounts in the bank account and took duplicate deposit tickets therefor, but no entries evidencing such deposits were made on his bank passbook. These amounts were not reported as income.
In the years 1921, 1922, and 1923 the petitioner received interest on Liberty Loan bonds in the respective amounts of $183.84, $546.50, and $734.21. These amounts were deposited in his bank account, and the bank issued duplicate deposit tickets therefor. They were not entered in his bank passbook.
At the end of each taxable year here involved, the petitioner footed the total entries in his bank passbook and reported such totals as his gross income for each of the years 1920, 1921, 1922, and 1923, in the respective amounts of $17,234.14, $15,825.10, $17,090.90, and $12,805.86. From these amounts he deducted expenses and deductions and paid the tax on the remainder as net taxable income for each of the several years. Upon audit of such returns the respondent increased the gross income*3775 for each year by adding the amounts *567 for which duplicate deposit tickets were taken, disallowed certain items of expense claimed by the petitioner, and asserted deficiencies and fraud penalties.
Subsequent to the first examination of the petitioner's books and returns and after conference, the respondent conceded that substantially all the amounts evidenced by the deposit tickets, except $2,550 in 1920, $8,800 in 1922, and the amounts set forth above as interest on Liberty Loan bonds were not income items, allowed some of the expenses previously added to income, and, after such adjustments, determined the deficiencies and penalties set forth above.
The only duplicate deposit ticket for the year 1920 is in the amount of $2,550 and represents a gift of cash received by the petitioner from his father.
In 1921 there were five deposits evidenced by duplicate tickets in the respective amounts of $4,500, $271.34, $2,727.75, $493.51, and $270.34. The evidence does not clearly establish the source of the deposits of $4,500 and $493.51, but does show that the respondent did not include such items in his final determination of income. Included in the deposit of $271.34 was*3776 the amount of $183.84 interest on Fourth Liberty Loan bonds and $87.50 interest on bonds of Armour & Co. The deposit of $2,727.75 was from the sale of a neither is included in the respondent's final determination of income neither is included in the respondent's final determination of income for the year.
In 1922 four deposits were evidenced by duplicate tickets in the respective amounts of $150.28, $115.86, $2,650, and $811.50. The source of the first is not disclosed by the record; the second was part of a liquidating dividend; the third was proceeds from the sale of a parcel of real estate, and the fourth represented dividends and interest on domestic and foreign stocks and bonds in the amount of $265, and interest on Second, Third, and Fourth Liberty Loan bonds and Victory Loan bonds in the amount of $546.50. The second and third items are not included in the respondent's final determination of income.
In 1923 twelve deposits were evidenced by duplicate tickets in the respective amounts of $3,300, $336.25, $2,547, $386.20, $90, $537.58, $500, $1,800, $600, $373.75, $207.20, and $7,000. The amount of $3,300 was cash withdrawn from bank in previous year and redeposited. *3777 The amount of $336.25 represents interest and dividends on domestic and foreign stocks and bonds. The amount of $2,547 represents proceeds from the sale of a parcel of real estate. The deposit of $386.20 represents a liquidating dividend. The amount of $90 represents interest on certain gas bonds. The deposit of $537.58 includes interest from Second, Third, and Fourth Liberty Loan bonds in the amount of $527.01, and interest of $10.57. The record does not establish the *568 source of the deposits of $500 and $600. The deposits of $1,800 and $7,000 represent cash gifts received by the petitioner from his father. The deposit of $373.75 represents interest on various domestic industrial bonds. The deposit of $207.20 represents interest on Third and Fourth Liberty Loan bonds. The amounts of $3,300, $2,547, $386.20, and $600 are not included in the respondent's final determination of the petitioner's income for the year 1923. None of the amounts enumerated as not included in the respondent's final determination of the petitioner's income are in controversy in this proceeding.
OPINION.
LANSDON: The respondent asserts deficiencies and penalties for each of the years*3778 here involved, and bases his action on the method of dual bank deposits practiced by the petitioner. It appears, however, that upon final audit, after conference with the petitioner, he conceded that the greater part of the amounts evidenced by duplicate deposit tickets was not income. He still contends that the amounts of $2,550 and $8,800 were income in the years 1920 and 1922, and that the petitioner has not proved that the interest received from Liberty Loan bonds was tax exempt. These are the principal items now in controversy.
The evidence is clear that the petitioner received cash gifts from his father in the years 1920 and 1922, in the respective amounts claimed. The respondent erroneously included these amounts in the petitioner's income for such years.
We are convinced that the petitioner received interest on Second, Third, and Fourth Liberty Loan bonds in the years 1921, 1922, and 1923, in the respective amounts of $183.84, $546.50, and $734.21. This income is not subject to normal tax rates. Its liability for surtaxes, if any, should be determined under Rule 50, in conformity with the law and the regulations of the Commissioner.
The petitioner claims other*3779 deductions from income as determined by the respondent on account of expenses paid in cash, contributions taxes, and recovered capital. The evidence as to these claims is not clear. He admits that there were duplications in the entries in the pocket memoranda of expenses that he kept, and also, that he is not certain as to the nature of some of the deductions claimed. We are unable to make any findings of fact as to these various items sufficient to overcome the determination of the respondent.
The penalties for fraud are predicated on the theory that the petitioner maintained his peculiar system of bank deposits for the purpose of covering up income and evading tax liability. The record shows that, with the exception of the interest from Liberty Loan bonds, the respondent has either conceded or the petitioner has *569 proved that substantially all the amounts represented by the deposit tickets but never entered on the passbook or reported as income were nonincome items. We have found that the amounts of $2,550 and $8,800, added by the respondent to income for the respective years 1920 and 1922, were gifts and therefore not taxable as income under laws in effect at such*3780 times. The interest on Liberty bonds, as well as the income from foreign and domestic stocks and bonds, should have been included in gross income with proper adjustments for tax exemption and taxes paid at source of income.
It is perfectly obvious that the petitioner had a very inadequate system of accounting, but we are convinced that he did not willfully or fraudulently understate his income for any of the taxable years. The penalties for fraud are disallowed.
Reviewed by the Board.
Judgment will be entered on 10 days' notice, under Rule 50.