
    American Trust Co. and Benjamin J. Older (formerly known as Benjamin J. Olcovich), Executors, Estate of Joseph Olcovich, Petitioner, v. Commissioner of Internal Revenue, Respondent.
    Docket No. 32581.
    Promulgated September 4, 1930.
    
      Jake W. Rodie, Esq., and Charles A. Christian, Esq., for the petitioner.
    
      Frank T. Horner, Esq., for the respondent.
   OPINION.

Seawell:

This proceeding involves a deficiency of $1,669.13 in estate tax as determined by the Commissioner on account of the estate of Joseph Olcovich, who died on July 8, 1924. The case was submitted on the pleadings, in which the answer of the Commissioner denies the greater part of the allegations of the petitioners, and consequently we have insufficient facts upon which to predicate a determination, even though we should find for the petitioners on the question of law involved. However, it appears from the petition that the following error was assigned:

That said tax thus sought to be levied falls upon and is assessed against the property interest of Hattie Olcovich as the wife of Joseph Olcovich, deceased, in the community property of said Joseph Olcovich, deceased and Hattie Olcovich, and is therefore a direct tax upon said property interest and not a privilege tax or excise, and not within the constitutional scope of the Estate Tax.

And at the hearing the petitioners admitted that the position taken by them was contrary to that taken by the Board on a like question in Griffith Henshaw, Executor, 12 B. T. A. 1441; affd., 31 Fed. (2d) 946; certiorari denied, 280 U. S. 43a.

Judgment will he entered for the respondent.  