
    Luther Elkins, Petitioner, v. Commissioner of Internal Revenue, Respondent.
    Docket No. 18036.
    Promulgated June 30, 1928.
    
      H. R. Tooley, G. P. A., for the petitioner.
    
      A. G. Baird, Esq., for the respondent.
   OPINION.

Milliken :

Eesponclent added to the income of petitioner, $5,000 as commissions paid to him by the Petroleum Producers’ Syndicate. He was no doubt moved so to do because the books of account of the Syndicate reflected such a situation. Petitioner, as well as Cobb and Fair, testified that no sum was paid by 'the Syndicate to petitioner during the year as commissions. The bookkeeping transaction set forth in the findings of fact did not give rise to income or change the true facts of the case and the respondent was in error in adding the amount in question to the income of petitioner.

Counsel for respondent at the hearing of this cause attempted to show that the Syndicate had been allowed the sum here in question as a deduction in determining the distributive share to which petitioner was entitled. Such attempt was in furtherance of the alternative claim which he made that if we were of the opinion that the respondent was in error in adding the sum in question to the income of petitioner, there would, nevertheless, be a sum which should be added to income represented by an increased distributive share from the Syndicate.

We have no competent evidence as to the deductions allowed the Syndicate in the determination of the distributive share of the petitioner and that in itself precludes favorable consideration of the claim made by counsel for respondent.

Judgment will he entered wider Rule 50.  