
    Herbert H. Franklin, Petitioner, v. Commissioner of Internal Revenue, Respondent.
    Docket No. 78673.
    Promulgated March 15, 1938.
    
      Benjamin E. Shone, Esg., for the petitioner.
    
      Eugene G. Smith, Esg., for the respondent.
   OPINION.

Steenhagen :

The Commissioner held that the shares sold were not susceptible of identification with any bought at a particular price, and that the first in, first out rule must therefore be used so as to use up first the earliest cost of $5,875, then the next cost of $2,403.83, thus leaving only the remainder to be applied against the last purchase of $43,250. The petitioner says that the shares sold could be identified with those last bought and that he did enough to establish such identity. Short of matching up certificates, which under the circumstances would have been an unreasonably cumbersome process, the petitioner did as much as might be expected to express an intent to sell the shares most recently bought, to communicate such intent to the person by whom the sale was to be executed, and immediately on his accounts to treat the shares sold as so identified. This satisfies the requirement of identity sufficiently to overcome the first in, first out rule, Helvering v. Rankin, 295 U. S. 123; Fuller v. Commissioner, 81 Fed. (2d) 176; Miller v. Commissioner, 80 Fed. (2d) 219. Cf. Kraus v. Commissioner, 88 Fed. (2d) 616.

The respondent’s determination is reversed.

Judgment will be entered wider Rule 50.  