
    Appeal of E. O. FIPPIN.
    Docket No. 980.
    Submitted June 17, 1925.
    Decided July 14, 1925.
    On the evidence, held that the taxpayer did not receive in 1920 a taxable profit on the sale of certain property.
    
      E. O. Fippin, pro se.
    
      J. Arthur Adams, Esq., for the Commissioner.
    Before James and Trussell.
    This is an appeal from the determination of a deficiency in income tax for the year 1920 of $624.41. The deficiency arises from a profit alleged to have been realized by the taxpayer in that year from the sale of a certain farm located near Ithaca, N. Y.
    FINDINGS OP FACT.
    The taxpayer is an individual residing in Port au Prince, Haiti,, a citizen of the United States, and, prior to the taxable year in question, was a professor of agriculture in Cornell University.
    During the year 1913 the taxpayer purchased the farm in question for the sum of $4,900. At that time the improvements on the farm consisted of an old farmhouse and run-down outbuildings, and an orchard covering the entire tract, containing many varieties of fruit trees in the last stages of decay from the ravages of disease and insects. Upon making the purchase and entering into possession, the taxpayer, for the purpose of establishing a residence on the place, made improvements the cost of which he is not now able to establish by detailed vouchers or statements of expenditures but which are established by satisfactory oral testimony to have been approximately as follows:
    (a) Remodeling bouse and introduction of modern equipment_$5,000
    (b) Building and remodeling outbuildings- 700 (Included garage, poultry bouse, and storage sbed, besides taking down old buildings and changes in barn.)
    (c) Taking out old trees, spraying, cultivating, and pruning old trees over a period of approximately three years before the trees were in condition to give any return. Area 16 acres- 1,000
    (d) New planting of trees and bushes. About 500 trees, 300 bushes, and 100 vines were planted and eared for to production_ 500
    Amount expended in betterments_ 7, 200 >
    The farm was sold in 1920 for $11,000.
    
      For the taxable years 1913 to 1920, inclusive, the taxpayer deducted in his income-tax returns alleged expenditures connected with, and depreciation of, the property claimed to be used in his business, which amounts are not disclosed by the record.
    DECISION.
    The deficiency determined by the Commissioner is disallowed.
   OPINION.

James:

The correct solution of this appeal requires that there be deducted from the total cost of the property of $12,100, as above set forth, the depreciation sustained during the years when it was owned and occupied by the taxpayer; that there also be deducted any amount claimed as deductions upon prior returns which duplicated the amounts above set forth, particularly in connection with the planting, cultivating, and otherwise improving the trees and shrubbery on the place. Such adjustments were a matter of affirmative proof to be introduced by the Commissioner. Instead of so doing, the Commissioner contented himself with general cross examination of the taxpayer. We are unable to determine from the record any basis of adjustment other than that set forth in our decision. There are intimations in the record that deductions as above mentioned were claimed by the- taxpayer' and allowed by the Commissioner in earlier years. But this Board cannot make findings of fact in definite amounts upon intimations. The taxpayer and the Commissioner must be expected to plead and to establish the facts upon which they rely in support of their respective positions. In the absence of proof, therefore, the Board can only base its decision upon the record, determining the ultimate issue in accordance with the evidence before it.  