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*60OPINION.

Sternhagen

: The foregoing facts are found from the admissions in the Commissioner’s answer and the revenue agent’s report of May 31, 1924, which the petitioner put in evidence. No other evidence was offered. The supplemental report of June 28, 1924, made apparently after the taxpayer’s protest had been considered and containing some modifications of income as indicated by the statement accompanying the notice of deficiency, was not offered and is not in evidence.

It is said that the petitioner kept his books of account and made his returns on the basis of actual receipts and disbursements and that the Commissioner has no right to change this to another basis, and especially so since the substituted basis does not in all the circumstances clearly reflect income. But the record lacks evidence of the basis, unless this can be inferred from the fact that, in the past when contracts were performed within a year, the petitioner returned as income the amounts received thereon. Assuming, however, the petitioner’s probable right to have his liability determined on the cash basis, the facts do not go far enough to enable the Board to compute the liability or to say that the Commissioner is in error. As to 1919, it may be true that the petitioner has the right to return income of the net commissions or compensation from the contract. As to 1920, from the figures in the findings, it is quite impossible to say what was actually received in the taxable year. In 1921, clearly he received a substantial amount, but whether it results in a net income of more or less than the amount of $30,513.70 which the Commissioner has determined, is not clear.

The petitioner obviously seeks a redetermination of his liability upon the basis of actual receipts and disbursements of the years in question, but his evidence is insufficient for the purpose.

The deficiency for 1921 is $3.p52.28. Order will be entered accordingly.

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