
    Edmund W. Wurzburg, Petitioner, v. Commissioner of Internal Revenue, Respondent.
    Docket No. 18399.
    Promulgated March 30, 1927.
    Petitioner, having filed a joint return of income for himself and his wife for the calendar year 1922, is not entitled to have his tax computed on the basis of his separate income. R. Downes, Jr., v. Commissioner, 5 B. T. A. 1029.
    
      F. E. Seidman, O. P. A., for the petitioner.
    
      W. F. Gibbs, Esq., for the respondent.
    This proceeding is for the redetermination of a deficiency in .income tax asserted by the Commissioner for the calendar year 1922 in the amount of $839.73. The case was submitted on a stipulation of facts
    FINDINGS OF FACT.
    On July 9, 1905, petitioner was married to Marguerite C. Wurz-burg, and was her husband during the taxable year.
    During the year 1907, Marguerite C. Wurzburg’s father died and as part of his estate left certain shares of stock in the Clark Iron Co., of which Marguerite C. Wurzburg received 1,450J4 shares during that year. The Clark Iron Co. was reorganized in 1914 and on May 15, 1914, Marguerite C. Wurzburg received a new certificate of her holding in that corporation, which certificate she continued to hold during the taxable period.
    From time to time the Clark Iron Co. paid dividends on its stock. The dividend checks were always made to Marguerite C. Wurzburg, and were deposited by her in her account and were subject only to her withdrawal. The stock in the Clark Iron Co. was in the name of Mrs. E. W. "Wurzburg and was her absolute property. The dividends received on this stock during the year 1922 were received by Mrs. Marguerite C. Wurzburg and treated as her absolute property. During the year 1922, Marguerite C. Wurzburg received $18,856.76 as dividends from the Clark Iron Co.
    
      On March 13, 1923, petitioner filed a joint return of income of himself and his wife for the year 1922, and included therein the taxable portion of such dividends (which he computed to be $8,392.50) received by his wife from the Clark Iron Co.
    In his communication of June 25,1926, the Commissioner increased the taxable portion of the dividends received from the Clark Iron Co. from $8,392.50 to $11,110.40. The Commissioner included these dividends in the gross income, pursuant to an audit of the return filed by Edmund W. Wurzburg as a joint return of income of husband and wife for the year 1922.
   OPINION.

ÁRaNDunr,:

We have heretofore held in R. Downes, Jr. v. Commissioner, 5 B. T. A. 1029, and Germain Cassiere v. Commissioner, 5 B. T. A. 1032, that in a case where a taxpayer has filed a single joint return of the. income of himself and his wife under the provisions of section 223(b) (2) of the Revenue Act of 1921, he is not entitled to have his tax computed on the basis of his separate income. These cases are determinative of the question raised in the instant proceeding, and on their authority the contention of the petitioner must be denied as contrary to the express provision of the law.

Juchjm&nt will be entered for the resfondent.  