
    EDWIN SCHIELE v. THE UNITED STATES
    [No. K-341.
    Decided November 6, 1933]
    
      
      Mr. Jesse I. Miller for the plaintiff.
    
      Mr. John A. Rees, with whom was Mr. Assistant Attorney ■General Frank J. Wideman, for the defendant. Messrs. W. W. /Scott, J. H. Sheppard, T. H. Lewis, Jr., and E. J. Dowd were on the brief.
   Green, Judge,

delivered the opinion of the court:

This action is begun to recover the sum of $6,611.68 with interest on account of taxes alleged to have been erroneously assessed and collected for the year 1919. On the submission of the case the parties agreed that the only issue in the case was whether a certain liquidating dividend of $8,000 which the Commissioner included in the taxable income of plaintiff for 1919 was properly taxable in that year. This depends on whether the dividend was received by plaintiff or placed under his control during the year 1919; or, on the other hand, whether it was not received by him and did not come under his control until the year 1920, as plaintiff alleges. This matter is wholly a question of fact to be determined from all of the evidence in the case. The commissioner of this court who heard the testimony and made a report tbereon has found in favor of the plaintiff on this, matter. His report recites:

“ Not only was the dividend not paid plaintiff until January 19, 1920, as heretofore shown, but, also, it was not subject to his unqualified demand until subsequent to December 31, 1919.”

To this finding other findings on which it is in part based the defendant has excepted. We have carefully examined the testimony and from this examination conclude that the preponderance of the evidence sustains the commissioner’s findings and have, therefore, adopted them. While the testimony is not long, no useful purpose will be subserved by discussing it. It is sufficient to say that upon these findings and the stipulation of the parties as to the amount of overpayment, if the findings of the commissioner are sustained,, judgment must be rendered in favor of the plaintiff for the sum of $3,094.60 with interest at six percent from September 28,1925, for the period provided by law. It is so ordered.

Whaley, Judge; Williams, Judge; LittletoN, Judge; and Booth, Chief Justice, concur.  