*77 Decision will be entered for the respondent.
A corporation expended certain sums to secure assurance by union officials that picket lines or other labor interference would not obstruct the prompt loading of cargoes upon ships. Upon information that petitioner received said money, respondent held petitioner liable for income tax thereon plus fraud penalty and penalty for failure to file a return. Respondent's determinations of deficiency in tax and liability for penalties are sustained.
*623 Petitioner did not file an income tax return for the year 1937. Respondent determined that petitioner received during 1937 the sum of $ 6,500 in addition to his salary in the amount of $ 2,168.25. The inclusion of $ 6,500 in petitioner's gross income has resulted in a deficiency in petitioner's income tax liability for the year 1937 in the amount of $ 288.78. Penalties have been added for failure to file an income tax return, section 3612 (d) (1) of the Internal Revenue Code, and for fraud under section 293 (b) of the Revenue Act of 1936, *78 in the respective amounts of $ 72.20 and $ 144.39.
The total amount of the deficiency and penalties is $ 505.37.
FINDINGS OF FACT.
Petitioner resides in Aberdeen, Washington. His present occupation is high climber and rig-up hook tender at the M. & B. Logging Co. During the year 1937 petitioner was a resident of Aberdeen, he was married, and he was employed as a business agent by the Sawmill and Timber Workers Union, Local No. 2, Loggers' Branch, at a salary of $ 50 per week. During 1937 he received a total salary in the amount of $ 2,168.25. The above union is part of the International Woodworkers of America, and it is affiliated with the C. I. O.
Petitioner was elected by secret ballot three times to the office of business agent of Local No. 2. As business agent for Local No. 2, Loggers' Branch, petitioner's duties were to organize unorganized camps within the jurisdiction of the Local in the area of Grays Harbor; to maintain organization; to assist in negotiations; and to represent the loggers who were members of the union. There were about 40 logging camps and about 13 sawmills within the jurisdiction of the local. Its membership in 1937 was close to 5,000, half of which*79 were loggers and half sawmill workers.
*624 There were about 13 timber locals in the Grays Harbor area, and they sent representatives to a district policy committee and a district negotiating committee of which there were about 75 members. Petitioner was a representative on these committees. He was also a representative of the International Union. He was elected twice to the executive board of the district council.
Grays Harbor is a community on the west coast of the State of Washington. It is the name given to an area surrounding a harbor where three contiguous cities, including Aberdeen, with a total population of about 40,000, are located. Twenty miles south of Grays Harbor is Willapa Harbor. The major industry in the locality of Grays Harbor and Willapa Harbor is the processing of lumber which is cut in logging camps which are located from 20 to 50 miles away. About 90 percent of the population of Grays Harbor is engaged in activities of the lumber industry.
The Grays Harbor Exportation Co., hereinafter referred to as the Exportation Co., is engaged in the business of acting as a sales agent or export representative of fir lumber mills on Grays Harbor and Willapa Harbor. *80 It had two offices, one in Aberdeen and one in Seattle. It followed the practice of making charter contracts with the owners of ships, and under such contracts it loaded cargoes of lumber onto ships at Grays Harbor. It exported lumber to purchasers in the Philippines, Japan, China, and other countries in the Far East.
In the latter part of 1936 or the early part of 1937, the Exportation Co. undertook the negotiation of charter contracts for loading lumber cargoes on four or five ships, tramp steamers, which were expected to arrive at Grays Harbor during the spring and early summer of 1937, the exact dates being uncertain. The ship owners required rigid strike clauses in the charter contracts, the terms of which provided that if the Exportation Co. could not load its cargo promptly when the ships called at Grays Harbor the owners could immediately cancel the charters without any further recourse. There had been strikes in Grays Harbor in 1934, 1935, and 1936, which had delayed or prevented the loading of ships during such strikes. The company had suffered losses as a result of the longshoremen's strike in 1936 which had not been covered by any insurance. In 1934 the longshoremen*81 refused to load ships of the Exportation Co. because the Sawmill and Timber Workers Union declared the cargo to be "hot cargo." Certain officers of the Exportation Co. believed that some steps should be taken to protect the company from any loss which might result from the cancellation of charter contracts which could be a result of strikes in Grays Harbor during the period covered by the contracts. They consulted insurance companies to obtain some kind of coverage against such possible loss, but the insurance *625 companies refused to enter into any contracts insuring the risks of cancellation of the contracts. The situation was that the Exportation Co. was a party to charter contracts, in the early part of 1937, which contained clauses giving the ship owners the option to immediately cancel the contracts in the event of the company's inability to load its cargoes promptly.
In the early part of 1937 officers of the Exportation Co. in the Aberdeen office were advised that the Sawmill and Timber Workers Union was engaged in a strike in the Columbia River basin area, that picket lines had been thrown around ships, that workers refused to go through the picket lines to load cargoes, *82 and that ships could not get cargoes loaded. The officers of the company were advised that the above named union had urged the local of that union at Grays Harbor to throw picket lines around boats which came to Grays Harbor. The officers of the company were fearful that the local of the Sawmill and Timber Workers Union would throw picket lines around the ships which the company had chartered when they arrived at Grays Harbor, and that, as a result, longshoremen would not go through the lines and the cargo of the company could not be loaded on the ships, and the charter contracts, therefore, would be canceled. The officers of the company considered what the company's total loss would be if all the contracts were canceled, and they estimated that such maximum loss would be approximately $ 200,000, based upon a loss of about $ 50,000 a ship, the difference between low rates in the existing charter contracts and higher rates which new contracts probably would contain.
Henry Anderson was in charge of the Aberdeen office of the Exportation Co. He was secretary and treasurer of the company. He consulted another officer of the company in the Seattle office, John P. Herber, the general*83 manager, about the problem in the latter part of March 1937. Herber told Anderson that the company had been unable to obtain any insurance against the risk of loss from cancellation of the charter contracts. Anderson and Herber discussed the possibility of seeking some agreement with union officials in Aberdeen so that the company might be assured that there would not be any obstructions by way of picket lines around the particular ships during the period that the company's cargoes were to be loaded on ships under the contracts. Anderson suggested that R. J. Ultican be called upon to endeavor to arrange a deal with the union. It was agreed that Anderson should consult Ultican, whom they believed had contacts with union officials. Herber had known Ultican since 1920. Anderson and Ultican were friends.
Ultican resides in Aberdeen and has an office there. At one time Ultican had been in the cedar exporting business and, later, he was engaged in the tugboat, scow, and shipbuilding business. In 1937 *626 Ultican was a member of the board of county commissioners. He was elected to that office twice and served two terms. Ultican also was engaged in small logging operations. *84 He owned a restaurant. He was also a stockholder in the Grays Harbor-Willapa Harbor Export Co., and he was general manager of that company.
Anderson discussed with Ultican the possibility of advancing money to union officials in order to keep the company free from any labor difficulties during the period the company expected to be loading cargoes. Ultican reported back to Anderson that he had worked out a deal which would require the payment of $ 500 in cash about every ten days to union officials, and Anderson understood that the total amount would be about $ 6,000. If any strike or labor trouble occurred the payments were to stop. Anderson reported to Herber that Ultican had reached an agreement with certain union officials to pay them a total of $ 6,000 at the rate of $ 1,500 per month during the period that boats were to be loaded, which was expected to be approximately four months. Herber understood that the money was to be paid to union officials to get them to use their influence to prevent any picket lines or obstruction of the loading of the company's cargo during the four-month period. Herber consulted the Exportation Co.'s attorney, who advised him that the company*85 would be justified in making such payments in order to be in a position to carry out the charter contracts. Anderson was authorized to make payments to Ultican. Ultican was to handle the transaction. The payments were to be charged on the books of the company as sales and charter expense.
Although it was believed originally that the total amount required would be $ 6,000, it developed that an additional $ 500 was paid. During the period from April 29 to October 12, 1937, the Exportation Co. issued 13 checks for $ 500 each to the order of "cash," total, $ 6,500. The checks were cashed in each instance by Tully Stallard, the auditor of the company, and he delivered the cash to Anderson. Anderson put $ 500 in cash in an envelope, in each instance, and the envelopes were delivered to Ultican by Anderson or Stallard. Ultican received a total of $ 6,500.
Ultican told Anderson that the cash was to be paid to petitioner.
All of the Exportation Co.'s charter contracts were carried out and its cargoes were loaded on ships under the contracts.
Petitioner received the $ 6,500 during 1937. Part of the deficiency is due to fraud with intent to evade tax.
OPINION.
Respondent determined that*86 the sum of $ 6,500 was received by petitioner and he increased petitioner's income by that amount. Petitioner has the burden of proving that he is not liable *627 for tax upon such amount. A ruling of the Commissioner assessing income tax is presumed to be correct and a taxpayer disputing the assessment on income tax deficiency has the burden of overcoming this prima facie presumption of correctness. Snell Isle, Inc. v. Commissioner, 90 Fed. (2d) 481.
Respondent has assessed a 50 percent fraud penalty pursuant to the provisions of section 293 (b) of the Revenue Act of 1936. Section 601 of the Revenue Act of 1928 specifically places the burden of proving fraud on the Commissioner. A charge of fraud is a serious matter in the law. Fraud may not be presumed. The respondent must prove it by clear and convincing evidence. Henry S. Kerbaugh, 29 B. T. A. 1014; affd., 74 Fed. (2d) 749.
Petitioner vigorously denies that he received $ 6,500, or any amount, from Ultican.
Respondent called several witnesses -- Herber, Henry N. Anderson, Ultican, Stallard, and S. H. Hamer, a special agent*87 of the Intelligence Unit of the Bureau of Internal Revenue. The testimony of Herber, Stallard, and Anderson clearly establishes the fact that the Exportation Co. disbursed $ 6,500 and transferred that sum to Ultican. Respondent's case rests upon the testimony of all of the above witnesses, who were the principals in the disbursements of the above sum of money excepting Hamer, to whose testimony reference will be made later.
Petitioner called several witnesses. Their testimony relates in part to the state of labor controversies, or the lack of such, in the area of Grays Harbor at the time in question.
Careful consideration has been given to all of the testimony of all of the witnesses. Except for the checks of the Exportation Co., the evidence consists wholly of the testimony of the witnesses produced by each party.
There is no reason to doubt the testimony of Anderson and Herber relating to their reasons for entering into a transaction involving the disbursement of the sum in question. A longshoremen's strike involving the entire Pacific Coast region was in progress from November 26, 1936, until February 4, 1937. One of petitioner's witnesses, Olsen, corroborated the testimony*88 of Herber, that there had been instances in Grays Harbor when a local of the Sawmill and Timber Workers Union would throw out a picket line through which longshoremen refused to go until the dispute was settled. During the period October 1936 to February 11, 1937, a strike occurred at the Polson Logging Co. near Grays Harbor. Herber testified that in the early part of 1937 a ship proceeding from the Columbia River was picketed at Willapa Harbor, could not be loaded, and proceeded without the cargo. In June of 1937 there was a dispute involving loggers at the Picco Logging Co. near Grays Harbor, logs from that company were *628 declared "hot," and the longshoremen at Grays Harbor refused to load the logs until loading was in order at the municipal dock.
With respect to the disposition by Ultican of the money delivered to his office by Anderson, there is only Ultican's testimony. He has testified that he made a proposition to petitioner in the early part of 1937 to the effect that he would provide funds to petitioner as a contribution to the union which he could use for unemployed members of the union, if petitioner would use his influence to keep away obstructions to the loading*89 of the ships; that petitioner told him that he thought "things could be kept smooth"; that an amount was agreed upon to be paid over a certain period of time provided there was no trouble; and, finally, that he gave the envelopes to petitioner. Ultican's testimony is emphatic. He testified categorically, "I gave Mr. Law the envelopes." "It wasn't given to anybody else." Anderson testified that Ultican told him that the money was to be given to petitioner and that the arrangements were to be made through petitioner, who was dealing with other union officials.
The problem plainly requires the selection of one of two witnesses as the one whose testimony must be accepted to be true and controlling, each one having given testimony which contradicts the other. Ultican has testified that he gave envelopes to petitioner, and the record establishes that the envelopes contained the money. Petitioner has testified that he did not receive envelopes or money from Ultican. If the credibility of both witnesses was on an absolute parity, if there was no impairment of the credibility of the testimony of petitioner, there would be reason to hold that petitioner had gone as far as he is required*90 in denying the receipt of the money, and, lacking more evidence to support respondent, the respondent's determination of the tax deficiency might not be sustained. But the situation here is one in which there is more reason for believing Ultican than for believing petitioner in the matter of weighing the testimony of one against the other. There is evidence in this record that prior to 1937 petitioner was convicted of the crime of burglary and served a term in the Oregon State Penitentiary at Salem, Oregon. Under statute, the proceedings of this Court must be conducted in accordance with the rules of evidence applicable in courts of equity of the District of Columbia. See section 907 (a), Revenue Act of 1924, as added by section 1000 of the Revenue Act of 1926, as amended by section 601 of the Revenue Act of 1928. It is provided in the District of Columbia Code, 1940 Edition, Title 14-305 [9:12], that conviction of a crime does not make a witness incompetent to testify, but the fact of such conviction may be given in evidence to affect his credibility as a witness, either upon cross-examination of the witness or by evidence aliunde. The testimony of the petitioner, therefore, *91 must be given less weight in the fine weighing of Ultican's testimony and his testimony.
*629 Circumstances may be given some weight. There is the circumstance that, in fact, all of the cargoes of the Exportation Co. were loaded. That which was stated to be the object of the transaction was achieved.
Upon due consideration it can not be found as a fact that petitioner did not receive the $ 6,500. The doubts must be resolved against petitioner. Mammoth Oil Co. v. United States, 275 U.S. 13">275 U.S. 13; Pennsylvania Railroad Co. v. Chamberlain, 288 U.S. 333">288 U.S. 333, 339. It can not be held that petitioner has succeeded in overcoming the correctness of respondent's determination of a liability for the tax deficiency. That determination of respondent is sustained. It follows that the assessment of a 25 percent penalty for failure to file an income tax return is sustained.
With respect to the fraud penalty, respondent proceeded to carry the burden of proof upon him in this issue. He has made his case through the testimony of Ultican, Anderson, Stallard, and Herber. Some of these witnesses were reluctant from the beginning to*92 give any information about the transaction to the Government, as the testimony of Hamer shows. It was necessary for a United States attorney to call them before a grand jury. We find no reason in the record before us for doubting any of these witnesses. Their testimony does not leave any doubt, standing alone, and petitioner did not succeed in disproving any of their testimony. It can not be said that respondent has not met the burden of proof upon him under this issue. Accordingly, respondent's assessment of the fraud penalty is sustained.
Decision will be entered for the respondent.