*2956 Under the laws of California, upon the death of the husband, the wife takes her portion of the community estate as heir of the husband and the whole of the community estate is properly included in the gross estate of the husband for purposes of Federal estate tax. Mary Brent, Executrix,6 B.T.A. 143">6 B.T.A. 143.
*1340 The respondent has asserted a deficiency in estate tax in the amount of $7,839.07. The petitioner alleges that the respondent erred "in including in the gross estate of the decedent, for estate tax purposes, the entire value of the community property one-half of which belonged to his wife, Natalie Rosenberg." The proceeding was submitted on the pleadings and from the allegations and admissions therein we make the following findings of fact.
FINDINGS OF FACT.
The petitioner resides in San Francisco, and is the administrator of the estate of Isidor Rosenberg, who died on May 31, 1923.
Paragraph 5 of the petition alleges as follows:
At the date of the death, May 31, 1923, of the decedent, Isidor Rosenberg, he was a married*2957 man living with his wife, Natalie Rosenberg, and domiciled in the State of California. Under the laws of that State one-half of the community property was owned, at the decedent's death, by his wife, Natalie Rosenberg. *1341 Respondent, however, has included in the taxable estate the value of the entire community property, not merely one-half thereof. For reasons stated only one-half of the value of the community property should be included in the taxable Estate of the decedent, and it was error, therefore, to include in such Estate of the decedent the value of the wife's interest in the community property.
Paragraph 5 of the respondent's answer to the petition herein is as follows:
Admits so much of the paragraph of the petition numbered 5 as alleges that at the date of his death Isidor Rosenberg was married and living with his wife, Natalie Rosenberg, and domiciled in the State of California; that the respondent included in the taxable estate the value of the entire community property, but denies every other allegation contained in the said paragraph numbered 5.
OPINION.
LANSDON: The issue here is controlled by *2958 . Cf. also our decision in and .
Decision will be entered for respondent.