Decedent had a written agreement with Robert A. Patton, whereby the latter served as president of a company of which decedent was principal stockholder, and was to receive from decedent, in addition to his salary, one-half the profits in excess of certain dividend requirements, payable in common stock of the company. In 1920 an accountant’s report was prepared showing certain profits and that Patton was entitled to 772 shares. His right to all of these shares was disputed, and this dispute was settled by decedent giving him 552 shares, though he claimed a larger number.
The agreement of settlement was in writing, and it contained this additional clause, out of which this controversy arises:
“7. In case hereafter the Federal taxes assessed against the corporation for 1920 are increased or diminished an adjustment will be made in the total number of shares covered by this agreement corresponding to the effect of tax revision upon the corporate profits of that year.”
To determine whether Federal taxes have been diminished, a starting point must be found; and as the agreement does not provide it, either in figures or precise definition, we must look elsewhere. Patton claims that it is the sum of $55,297.65, which was the reserve for Federal taxes set up in the accountant’s report; and as the taxes were finally settled by the Government at $7085.79, he claims one-half the difference. Decedent’s representatives claim that the starting point is the sum of $23,341.76, which was the figure fixed by Patton himself in his return as president of the company, made and filed before the settlement was arrived at; and they concede him the difference. The Auditing Judge adopted the latter view, and we agree with him.
The error of the exceptant’s argument lies in assuming that the settlement agreement was drawn with the accountant’s report always and solely before the parties as to the tax liability. There is no evidence of this, and as the claimant fails to sustain the burden which is on him, he must be satisfied with the concession by decedent’s representatives of the lesser figure. As the income taxpayer’s return is really a self-assessment, the language of the *689igreement, “in case hereafter the Federal taxes assessed against the corporation for 1920 are increased or diminished,” more naturally refers to the igures of the return as the starting point. If the Government had stood on ;he return and made no refund, would assessed taxes have been diminished? lould it he said that in such case there had been any “tax revision?”
The exceptions are dismissed and the adjudication is confirmed absolutely.