
    Appeal of FRANK J. PIMENTAL.
    Docket No. 3402.
    Decided September 15, 1926.
    
      Philip G. Sheehy, Esq., for the petitioner.
    
      A. Colder Machay, Esq., for the Commissioner.
    This appeal is from the determination of a deficiency of $1,047.32, for the calendar year 1921, of which $776.59 is the amount determined to be the deficiency in tas, and $270.73 determined to be the 25 per cent penalty for failure to file the return within the time required by law.
    FINDINGS OF FACT.
    During the calendar year 1921, the petitioner was a resident1 and citizen of California, married and living with his wife. Petitioner and his wife filed separate returns for the year involved, each reporting one-half of the income of the marital community for said year. The Commissioner held that the entire income belonged to the husband and increased the income as shown by his return by the determination of the deficiency here in question. He further held that the taxpayer was liable for the 25 per cent penalty for failure to file his return at the time required by law.
   OPINION.

Littleton

: The decision of the first question involved in this proceeding is governed by the opinion of the court in United States v. Robbins, 269 U. S. 315, and the decision of the Board in the Appeal of D. Cerruti, 4 B. T. A. 682.

It is alleged that the Commissioner erred in adding to the deficiency the amount of $270.73 as a delinquency penalty. No evidence has been submitted showing that this penalty was improperly asserted by the Commissioner.

Judgment for the Commissioner.  