
    Hamilton, Harris & Co., Petitioner, v. Commissioner of Internal Revenue, Respondent.
    Docket Nos. 4170, 15687.
    Promulgated June 21, 1928.
    
      Conrad Wolf, Esq., and J. Murray Chenoweth, Esq., for the petitioner.
    
      J. E. Marshall, Esq., for the respondent.
   OPINION.

Murdock:

The Commissioner erred in deducting a tentative tax for the current year from current earnings of each year, thus reducing invested capital. L. S. Ayers & Co., 1 B. T. A. 1135. The income and profits tax liability of the previous year as finally determined must be prorated from the dates on which the installments became due in order to find the correct amount to deduct from surplus in the computation of invested capital for each year. When, in accordance with this opinion, the tax for 1920 is finally computed that amount must be prorated through 1921.

The petitioner had an account called “ Stock Commission ” which is treated as an asset account. At the end of 1919, this account had been reduced to $19,200, but we do not know anything about it during the taxable years. The Commissioner on account of the commission paid by the petitioner in connection with the sale of its preferred stock has deducted $20,000 from surplus in the computation of invested capital for each of the .years before us. Under the circumstances we must assume that $20,000, representing this commission, has been reflected in the petitioner’s surplus. The Commissioner in effect has held that surplus has been overstated by this amount of $20,000 and we have not been convinced that the petitioner has any asset as a result of the payment of this $20,000 commission which should be reflected in its surplus to the extent of $20,000, or to any extent. Simmons Company, 8 B. T. A. 631.

Judgment will be entered under Rule 50.  