*2005 Information returns for the years 1920 to 1924 were, under an erroneous conception of the requirements of law, made on a fiscal year basis by a partnership of which petitioners were members, although the petitioners intended, and the partnership articles pro vided for a calendar year accounting period, and the partnership books were kept and its income reported on that basis in the individual returns of the petitioners. Held, that the returns filed by the partnership did not, under the circumstances, constitute an election to establish a fiscal year accounting period for the partnership.
*935 These proceedings, which were duly consolidated for hearing and decision, are for the redetermination of deficiencies in income tax asserted by the respondent for the year 1924 as follows: George N. Klemyer, $5,811.99; Arthur F. Jacobs, $5,895.44.
FINDINGS OF FACT.
The petitioners are individuals residing in San Francisco, Calif. For each of the years 1919 to 1924 they made their returns of income on the calendar year basis.
The Equitable Realty*2006 Co., a corporation, was dissolved on May 31, 1919, and was succeeded by a partnership composed of the petitioners. Each of them had a one-half interest therein. The partnership agreement provided that:
* * * The said co-partners once each year during the continuance of the copartnership, as aforesaid, to-wit: On the 31st day of December, in each year, or oftener, if necessary, shall make, yield, and render, each to the other, a true and just and perfect inventory and account of all the profits and increase by them, or either of them, and all loss by them or either of them sustained; and also all payments, receipts, disbursements and all other things by them made, received, disbursed, noted and suffered in their said business; * * *
and each of the petitioners understood that said articles of agreement required that the partnership books be kept and the partnership profits distributed on the calendar year basis, and they understood that said books and profits should be so kept and distributed.
The books of the Equitable Realty Co., the corporation, were closed on May 31, 1919, and a final income-tax return was filed for the five-month period ended May 31, 1919. On or about*2007 January 1, 1920, the books of the partnership were opened as of June 1, 1919. The partnership records for the seven-month period beginning June 1, 1919, were closed at December 31, 1919. No return of income was made by or for the partnership for the period June 1 to December 31, 1919. The books of the partnership were closed on May 31, 1920, and December 31, 1920, and on each May 31 and December 31 thereafter, to and including December 31, 1924. Returns of income *936 for the fiscal years ended May 31, 1921, May 31, 1922, May 31, 1923, and May 31, 1924, were filed for the partnership. These returns were prepared by one Brockhoff, an accountant, who also prepared returns for the petitioners. He was not at any time instructed by either of the petitioners to place the partnership on a fiscal year basis and he did not intend so to do, but filed the returns on the fiscal year basis in the belief that, since the partnership commenced operations on June 1, 1919, an information return should be filed by it for the twelve months ended May 31, 1920, and each twelve months thereafter. On October 11, 1927, the partnership filed amended returns for the period June 1 to December 31, 1919, inclusive, *2008 and for the calendar years 1920 to 1924, inclusive.
In each of the years 1920 to 1924, inclusive, the income of the partnership was computed and divided between the petitioners on the calendar year basis and was reported by them in their individual returns for those years.
Each of the petitioners in his return of income for the year 1924 reported as his distributive share of the income of the partnership the amount of $5,817.17, said partnership income being computed on the calendar year basis as above stated. The respondent, upon audit of the return, determined that the books of the partnership were kept on the basis of a fiscal year ending May 31 of each calendar year, and that the income of the partnership for the fiscal year ended May 31, 1924, was $70,809.02 and the share of each petitioner, $35,404.51. The respondent accordingly increased the income of each petitioner as shown on his return for the year 1924 by the amount of $29,587.34 and determined deficiencies as above set forth.
OPINION.
MARQUETTE: It appears to be the position of the respondent that: (1) The partnership accounting period is a fiscal year ending May 31; (2) that in any event the partnership, *2009 in filing returns on the fiscal year basis, has made an election which is binding upon the petitioners and that they must account for and return the partnership income computed on the basis of a fiscal year. The petitioners deny that the partnership has ever adopted or intended to adopt any accounting period other than the calendar year, and they say that returns for the partnership were made on the fiscal year basis under the erroneous belief that, as they were mere information returns, they should be filed at the end of each twelve months of the partnership life.
It is our opinion that the position of the petitioners is well taken. The evidence clearly shows that they interpreted the partnership agreement as requiring the partnership books to be kept and its *937 income accounted for and distributed on the basis of the calendar year, and that they have consistently closed the partnership books at December 31 of each year and have computed and reported and paid taxes on the partnership income on that basis. The fiscal year returns of the partnership clearly were made and filed under a mistaken conception of the requirements of the income-tax law. We are satisfied that*2010 the partnership accounting period was intended to be and was the calendar year, and that the partnership income has been computed and reported by the petitioners, in their individual returns, on the proper basis, and that the filing of fiscal year returns by the partnership did not, under the circumstances, constitute an election to change to a fiscal year accounting period. . The respondent has cited a number of cases in support of his position, but we do not deem them applicable to the facts herein.
Judgment will be entered under Rule 50.