
    Appeal of YALE KNEELAND.
    Docket No. 179.
    In accordance with the decision in Appeal of Ormsby McKnight Mitchel, 1. B. T. A. 143, it is held that the entire distributive share of the taxpayer in the net income of Power, Son & Co. in the years 1917, 1918, and 1919 should be included in computing his individual net income for those years.
    Submitted October 31, 1924;
    decided December 11, 1924.
    
      Herman Aaron, Esq., for the taxpayer.
    
      Robert A. Littleton, Esq. (Nelson T. Hartson, Solicitor of Internal Revenue) for the Commissioner.
    Before Ivins, Korner, and Marquette.
    This case was heard upon a stipulation of facts from which the Board makes the following
    FINDINGS OE PACT.
    1. That during the years 1917, 1918, and 1919, and for some time prior thereto, the petitioner herein, Yale Kneeland, and one Ormsby McKnight Mitchel were copartners carrying on business in the city of New York under the firm name and style of Power, Son & Co., and that the proportionate interests of said partners in the said business were 49 per cent and 51 per cent, respectively.
    2. That on the 1st day of January, 1916, the said Yale Kneeland made and entered into an agreement with Anna Ball Kneeland, his wife, as follows:
    Agreement between Yale Kneeland, party of the first part, and Anna Ball Kneeland, party of the second part.
    The party of the first part being a member of the firm of Power, Son & Co., composed of Ormsby McK. Mitchel and Yale Kneeland.
    Now, for valuable consideration by each of the parties to the other in hand paid, the receipt of which is acknowledged, the parties hereto agree to form a subpartnership as to the profits which shall accrue to the party of the first part from the aforementioned firm upon the conditions and agreements hereinafter set forth, to wit:
    First. The party of the second part shall be entitled to one-half of the profits which shall come to the party of the first part from said firm, and shall likewise be liable to pay to the party of the first part, one-half of the losses which he may sustain by reason of his partnership in said firm. The term “ profits ” herein mentioned shall include interest or allowance to the party of the first part for capital invested by him in said firm, and for accumulations to his credit therein, including any such capital or accumulations as may be represented by property which as between the parties hereto is the property of the party of the second part. Upon receiving the profits herein mentioned the party of the first part agrees to hold for and pay to the party of the second part the share thereof to which she shall be entitled hereunder, and upon the sustaining of the losses herein provided for the party of the second part agrees to pay to the party of the first part the share thereof for which she shall be liable hereunder.
    Second. Settlements shall be had between the parties hereto annually unless this agreement shall be terminated prior to the expiration of any year when á settlement shall be had upon the termination of this agreement.
    Third. This agreement shall take effect as of the beginning of the fiscal year and may be terminated by either party at any time.
    Dated New York, January 1, 1916.
    (Sgd.) Yale Kneeland,
    (Sgd.) Anna Ball Kneeland.
    
      Upon the making of said agreement Power, Son & Co. were duly notified thereof, and the share of Anna Ball Kneeland under the agreement was paid over or credited to her as it accrued.
    3. That for the years 1917,1918, and 1919 Yale Kneeland included in his income-tax returns in each of the above years as income derived from the partnership of Power, Son & Co. one-half of the income attributable to his 49 per cent interest in the profits of that partnership. The Commissioner proposed to include in petitioner’s income the entire 49 per cent of the profits of Power, Son & Co. for each of the years in question and to assess against the petitioner an additional tax for the years 1917 of $19,453.97; for the year 1918 of $35,940.48, and for the year 1919 of $34,988.50.
    4. That on August 11, 1922, the Commissioner first proposed the assessment of the additional tax above set forth and a hearing was held before the Income Tax Unit on October 4, 1922, at which time the petitioner and his counsel were present and were heard. By letter dated November 3, 1922, the Commissioner notified the taxpayer that the tax proposed to be assessed by letter of August 11, 1922, would be assessed at the expiration of 30 days from the date of said letter unless within such period the taxpayer availed himself of his right to appeal to the Commissioner. On November 29, .1922, and within 30 days from said letter of November 3,1922, an appeal to the Commissioner from the letter of November 3, 1922, was duly filed. The papers constituting the said appeal were either lost or misplaced in the Commissioner’s office, and while the appeal was pending the assessments proposed in the letter of November 3,1922, were, through error and not because of the belief of the Commissioner that the collection of the amount due would be jeopardized by delay, placed on the assessment list for collection and forwarded to the collector for the district wherein the returns of the taxpayer were filed. On February 19, 1923, taxpayer’s counsel addressed a letter to the Commissioner inclosing a copy of the notice of appeal, with its accompanying papers and a copy of the registry receipt and return receipt for the original appeal. On April 23, 1923, the taxpayer filed with the collector for his district claims in abatement against the assessment for each of the years in question. Upon the showing made by the taxpayer’s counsel in letter of February 19, 1923, and the evidence adduced therewith the appeal filed November 29, 1922, was heard and considered by the Commissioner, and on November 30, 1923, the Commissioner denied the appeal, but no assessment was then or later made. Subsequently a request was made of the Commissioner by taxpayer to reconsider the case on his claims for abatement. The case was referred by the Commissioner to the Solicitor, who, after a hearing at which counsel for the taxpayer was present, advised the Commissioner that his decision of November 30, 1923, should be followed. Thereafter and by letter dated September 11, 1924, the Commissioner notified the taxpayer herein that his appeal was denied, and that in view of the denial of the appeal, which was the basis of the claims for abatement, the claims were rejected. The taxpayer has appealed to the Board from the Commissioner’s letter of September 11, 1924.
    
      DECISION".
    The Board determines that there is a deficiency for the year 1917 in the amount of $19,453.97; for the year 1918 in the amount of $35,940.48; and for the year 1919 in the amount of $34,988.50, and the determination of the Commissioner is hereby approved.
   OPINION.

Marquette:

The facts in this case are practically identical with the facts in Appeal of Ormsby McKnight Mitchel, 1 B. T. A. 143, and it was stipulated by counsel that the decision herein should follow the decision in that case. In accordance with said decision we hold that the taxpayer’s entire distributive share of the net income of the partnership of Power, Son & Co. in the years 1917, 1918, and 1919 should be included in computing his individual net income for those years, and the determination of the Commissioner to that effect is approved.  