(concurring in part and dissenting in part).
As to the 1947 tax I concur, but as to the 1949 tax I respectfully dissent.
No one disputes the settled proposition that a taxpayer meets his burden when he shows that the Commissioner’s determination is arbitrary and hence invalid, and that it is not necessary that he also show the correct amount of the tax, if any, which is due.1
The taxpayer and her husband were divorced on December 5,1949. The Commissioner determined that, since they were married for eleven months of the year, she was taxable upon % of Wizths of her husband’s income for 1949. To me it does not appear that that finding was based upon sufficient evidence, but, to the contrary, it was arrived at by a mere arbitrary, mathematical calculation.
Among other facts, the Tax Court found the following:
“During the taxable years in question Jack was employed as the general manager of the South Plains Automobile Club, a Texas corporation. Petitioners were the owners of the entire capital stock of the corporation as community property.
“Dorothy had no knowledge of what Jack’s income was during 1946, 1947, 1948, and 1949, nor did she know how his business was doing. She had never seen his books or records.
“Dorothy was not employed and did not have any personal income during 1946, 1947, 1948, or 1949. All the money which she received during those years was support money which she received from Jack for herself and their two minor children.”
So far as appears, all of Jack’s business income came from the named Texas corporation. Just how much came from salary and how much from dividends *7was not proved. Whether his salary for December was at the same monthly rate as for the other eleven months of the year does not appear, though perhaps that much might be presumed. As to any dividends, however, they, of course, do not become income to the shareholder until they are received.2 3
Can the Commissioner assume, without evidence, that a substantial part of the husband’s income was not derived from dividends paid to him after December 5th? Dividends paid to the husband after the divorce were not community income.
Any tax due by the former wife should be determined by computing the actual community income for the period prior to divorce and allocating one-half of that to her. The result may be more or less than the tax determined by the Commissioner, but the taxpayer may insist upon reasonably exact justice and cannot be required to content herself with a mere rough arbitrary approximation.
I therefore concur in part and dissent in part.
. Helvering v. Taylor, 1935, 293 U.S. 507, 515, 55 S.Ct. 287, 79 L.Ed. 623; Phillips v. Commissioner, 5 Cir., 1957, 246 F.2d 209, 213; Thomas v. Commissioner, 6 Cir., 1955, 223 F.2d 83, 90; Thomas v. Commissioner, 1 Cir., 1956, 232 F.2d 520, 525.
. 26 U.S.C.A. (I.R.C.1939), § 115; Mason v. Routzahn, 1927, 275 U.S. 175, 178, 48 S.Ct. 50, 72 L.Ed. 223; Tar Products Corporation v. Commissioner, 3 Cir., 1942, 130 F.2d 866, 867.