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OPINION.

Littleton :

The only question involved in this case is whether the taxpayer has submitted evidence sufficient to establish good will of the value of $22,325.89. The taxpayer relies upon the resolution of the board of directors appraising the assets acquired from the partnership, in accordance with section 55 of the stock corporation law of the State of New York. It is contended that the appraisal of assets by the directors under the law of New York, in the absence of fraud, is conclusive as establishing the actual cash value of the intangible asset good will as required by section 326(a) (4) of the Revenue Act of 1918. We can not agree with this contention.

Section 326(a) (4) of the Revenue Act of 1918 provides that—

As used in this title the term “ invested capital ” for any year means (except as provided in subdivisions (b) and (c) of this section) * * * Intangible *177property bona fide paid in for stock or shares prior to March 3, 1917, m an amount not exceeding (a) the actual cash value of such property at the time paid in; (b) the par value of stock or shares issued therefor, or (e) in the aggregate 25 per centum of the par value of the total stock or shares of the corporation outstanding on March 3, 1917, whichever is lowest.

This section clearly contemplates a showing of actual value of intangibles claimed as invested capital. . Evidence of such value is lacking in this case. The evidence offered in the form of the resolution of the board of directors appraising the property acquired is insufficient, standing alone, to establish either the existence of good will or the value thereof for invested purposes. The provision of section 55 of the New York stock corporation law making the appraisal of the value of the property by the board of directors conclusive, is intended to protect stockholders where outstanding stock of the corporation is not fully paid in, and can not be accepted as conclusively establishing the actual cash value of the asset good will at the time paid in, as required by section 326 (a) (4) of the Revenue Act of 1918. The Revenue Act contemplates the existence of facts upon which the value of good will can be determined. In the absence of facts sufficient to enable us to determine the actual cash value of the good will the disallowance thereof in invested capital by the Commissioner must be approved.

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