*4063 The Commissioner's determination of the amount of a liquidating dividend received by the petitioner during the taxable year is approved.
*654 This is a proceeding for the redetermination of a deficiency in income tax for the calendar year 1919, in the sum of $6,451.49. It is alleged in the petition that the Commissioner erred in adding to income subject to surtaxes an amount of $19,024.79 as representing a liquidating dividend.
FINDINGS OF FACT.
The petitioner, David Herstein, is a resident of the City of New York. During the year 1915, the petitioner, together with H. P. Dworsky, formed a corporation, known as the Belnor Hat Co., for the purpose of engaging in the manufacture of ladies' hats. On November 30, 1919, the stockholders of the corporation were two in number, David Herstein, the president, holding 45 shares, and H. P. Dworsky, secretary-treasurer, holding 95 shares. The two stockholders above named had a disagreement in May of 1919 and decided to separate and to dissolve the corporation. The petitioner had invested all of his money*4064 in the business, while Dworsky had other interests and financial backing. When the dissolution was discussed, Dworsky threatened to place the business in the hands of a receiver and to tie up the assets for some time unless from the corporate assets $7,500 should be paid to him before the remaining assets should be divided between the two stockholders. The petitioner finally agreed to this plan. $7,500 was paid to Dworsky and later a further payment of $5,000 was made to him, after which the assets were divided between the two.
In addition to other amounts received by him, the petitioner took over the unexpired portion of a lease belonging to the corporation for premises at 28 West 48th Street, New York City. The lease in question was never carried on the books of the corporation at any value.
After the disagreement in May, Dworsky took charge of the books of the corporation and attempted to collect certain of the outstanding accounts receivable. The petitioner and Dworsky had entered into a written agreement as to the division of the profits and also had a *655 written agreement as to the division of the assets, neither of which agreements are in evidence.
An*4065 audit of the corporation's books as of May 24, 1919, showed the sum of $600 to be due the corporation upon open accounts. The corporation's returns were made upon the basis of a fiscal year expiring November 30, of each year. On November 30, 1919, the balance sheet of the corporation, as reported in its return for the fiscal year 1919, showed cash $300, and accounts receivable in the amount of $53,092.36, of which approximately $52,000 was due the corporation from the two stockholders for money advanced and merchandise sold to them. After November 30, 1919, there were no collections of the corporation's accounts receivable in any substantial amount.
The individual income-tax return of the petitioner for the year 1919 was upon the accrual basis. The Commissioner included in the petitioner's 1919 income the amount of $19,024.79 as representing a liquidating dividend of the Belnor Hat Co.
OPINION.
MURDOCK: The petitioner's contention, so far as we can judge, is that although each of the stockholders received certain assets of the corporation in 1919, the corporation thereupon charged them for these assets by entries in its accounts receivable, thus making a bona fide sale. *4066 The Commissioner held that this was not a bona fide sale, but a liquidating dividend, inasmuch as corporate activity thereupon ceased and the accounts receivable were never to be and never were collected. We can not find from the evidence that because of the transfer to the petitioner of the assets in question, an account receivable was entered against him on the books of the corporation. Furthermore, there is nothing to indicate any corporate activity after the close of its fiscal year on November 30, 1919. The evidence tends to support the Commissioner's determination. .
From the pleadings no question is raised in regard to the correctness of the value or amount of the assets received by the petitioner. But even if this question were raised the petitioner would be entitled to no relief. The Commissioner determined that on November 30, 1919, the corporation had a surplus of $38,392.36. He took one-half of this amount and reduced it by certain undisclosed adjustments to arrive at the amount of $19,024.79 as the petitioner's share of a liquidating dividend. There is nothing to indicate whether or not the surplus of*4067 November 30, 1919, as determined by the Commissioner, included or excluded the amounts paid to Dworsky, and there is nothing to indicate at what value or amount accounts receivable were or should have been included in the computation of that *656 surplus. Therefore, we are unable to say that the Commissioner's determination was incorrect in amount.
Judgment will be entered for the respondent.