The findings, legal conclusions and opinion of the Tax Court are reported in 5 T.C. 482. The evidence sufficiently supports the findings. We agree with that court’s interpretation of the partnership agreement in the light of the findings. It follows that the decision was correct, i.e., that when the debt from King became worthless, <jt *592was not owing to taxpayer. He, or the Anderson estate, had a claim against the members of the new partnership. It is immaterial that, through a mistaken notion of their legal rights, he and the estate may have relinquished their claims against those members; we do not, of course, decide that there was such a release.
Taxpayer complains that the case was not tried on the theory on which it was decided, that theory having been first advanced by the Commissioner in his brief filed in the Tax Court after all the evidence had been received. The Commissioner, in his brief filed in this court, virtually concedes as much, but states: “The taxpayer’s reply brief before the Tax Court, while objecting to the new theory of the case relied on by the Commissioner, did not claim 'that ahy new evidence was necessary and did not request that an opportunity be given to refute the Commissioner’s contentions by further testimony. No petition for rehearing ' was filed.”' N6 part of this statement was denied by taxpayer in' its briefs ór .oral argument in this court. Accordingly; we see no ground for holding that taxpayer was not accorded a fair hearing or for remanding the case for the reception of further evidence.
Affirmed.