
    Anna P. Jacobs, Executrix, Estate of Robert Jacobs, Petitioner, v. Commissioner of Internal Revenue, Respondent.
    Docket No. 12188.
    Promulgated October 26, 1928.
    
      Arthw H. Shoemaker, Esq., for the petitioner.
    
      Arthw H. Murray, Esq., for the respondent.
   Lansdon :

The respondent has determined deficiencies in income tax for the years 1920 and 1921, and for the period January 1 to August 8,1922, in the total amount of $2,198.71; and overassessments for the year 1919, and for the period from September 1 to December 31, 1922, in the total amount of $887.57. The only error alleged in the petition is that certain bank deposits made in the taxable years represented capital assets and were not taxable as income.

At the hearing the petitioner introduced no evidence to prove her contention. Her counsel argued then and later in his brief that inasmuch as the decedent and his administrator had made tax returns for the years and periods involved, and that by reason of death and lack of evidence it is now impossible to prove that the deposits represented capital assets and were not income, the presumption arises that the original returns were based on the actual facts and that the burden of proof is on the respondent to show that the deposits in question were income. We are not impressed with this theory which is advanced without any supporting citations of law.

The petitioner having failed to adduce evidence sufficient to overcome the presumption that the determination of the respondent is correct, the only course open to us under our rules is to decide this controversy adversely to her contention.

Decision will be entered for the respondent, under Rule 50,  