Fleischaker v. Commissioner

OPINION.

The respondent held that the partnership of Fleisch-aker’s should have reported its income upon the accrual. basis and determined its tax liability upon that basis. Testimony was introduced by the petitioner for the purpose of showing that the books of account of Fleischaker’s were kept upon the basis of cash receipts *390and disbursements. There was introduced in evidence a check book showing the stubs of checks written, a cash book showing cash received and paid out, and a book showing' the sales between the different partnerships in which Fleischaker was interested and identified. William Fleischaker was a witness at the hearing but was not asked, and did not testify, whether the books and records introduced in evidence constituted all the books and records kept and maintained by the partnership during the years involved. Counsel for the petitioners admitted that inventories were kept of merchandise on hand and that resort was had to these inventories for the purpose of determining taxable income, but they were not offered in evidence. A revenue agent’s report was introduced in evidence by the petitioner for the purpose of showing the basis used by the respondent in determining the deficiency. This report indicates that the cost of goods sold during the year was determined by the partnership by the use of inventories. The revenue agent’s report makes allowance for bad debts charged off during the taxable year and also shows as liabilities accounts payable. It is not disclosed from what books or records the revenue agent obtained these accounts. It would indicate, however, that other books and records were kept than those introduced in evidence by the petitioner and that the accrual basis of reporting income was used.

The presumption is that the determination of the respondent is correct, and the evidence introduced by the petitioners does not overcome that presumption.

In the petitions filed in these proceedings it was alleged that Fleischaker’s was a partnership composed of William Fleischaker and Isadore Fleischaker. This allegation in each of the petitions was admitted in the answers of the respondent. Testimony, however, was introduced to the effect that the partnership was what was called a working partnership and that William Fleischaker owned the assets and Isadore Fleischaker performed services for which he was to receive a portion of the profits. In the brief filed the petitioners contend that Fleischaker’s was not a partnership. The pleadings, however, were not amended to raise the issue of the partnership and for that reason we do not consider the question. If we were called upon to decide the question, the testimony is too uncertain, indefinite, and unconvincing to warrant us in finding that the allegations made in the petitions and admitted in the answers are not true.

Judgment will be entered for the respondent. The deficiency for 1917 in the case of Fleis choker's is $Z^S.71, and in the ease of Wm. Fleischaher the deficiency for 1918 is $608.33, and for 1919 is $1,908.90.