SPATOLS v. COMMISSIONER

JOSEPH SPATOLS, PETITIONER, v. COMMISSIONER OF INTERNAL REVENUE, RESPONDENT. SPATOLS v. COMMISSIONER Docket No. 100815. United States Board of Tax Appeals 43 B.T.A. 1110; 1941 BTA LEXIS 1408; March 25, 1941, Promulgated *1408 The petitioner is a member of a partnership which filed its income tax returns on a calendar year basis. The petitioner made his income tax returns upon the basis of a fiscal year ending September 30. In 1936 he obtained permission to change his taxable year to the calendar year and filed a return of net income for the period October 1 to December 31, 1936. Held, that there must be included in such return his share of the profits of the partnership for the calendar year 1936. Charles M. Trammell, Jr., Esq., for the petitioner. Bernard D. Daniels, Esq., for the respondent. SMITH *1110 This is a proceeding for the redetermination of a deficiency of $4,407.35 in income tax for the period October 1 to December 31, 1936. The petition alleges that the respondent erred in the computation of the deficiency by including in the petitioner's gross income for the short period the full amount of his share of the profits of the partnership, of which he was a member, for the entire calendar year 1936. FINDINGS OF FACT. 1. The petitioner is a resident of Philadelphia, Pennsylvania. 2. The petitioner filed a separate individual income tax*1409 return for the period October 1 to December 31, 1936, with the collector at Philadelphia. *1111 3. Prior to October 1, 1936, the petitioner kept his books of account on the basis of a fiscal year ending September 30. He filed an income tax return for the fiscal year ended September 30, 1936. 4. Prior to August 12, 1936, the petitioner made application on Form 1128 requesting permission of the respondent to change his taxable year from the fiscal year ending September 30 to the calendar year. The application was granted by the respondent and the petitioner was required to file an income tax return for the period October 1 to December 31, 1936. 5. During the period October 1 to December 31, 1936, and also from January 1 to October 1, 1936, the petitioner was a member of a partnership known as Felix Spatola & Sons, Philadelphia. 6. The books and records of the partnership were kept on a calendar year basis and the partnership income tax return for the year 1936 was filed on a calendar year basis. 7. The net profit of the partnership for the year 1936 was $59,309.30. 8. Petitioner's distributable share of the net profit of the partnership for 1936 was $11,438.65. *1410 9. The petitioner's net income received during the period October 1 to December 31, 1936, was as follows: Distributive share of partnership profits $11,438.65 Net income from all other sources 12,433.27 Total taxable net income 23,871.92 10. On September 3, 1936, the respondent notified the petitioner that he would be required to file a return for the period October 1 to December 31, 1936, and also a return for the fiscal year ended September 30, 1936. The respondent directed the petitioner's attention to the fact that in determining the tax on the return covering the period October 1 to December 31, 1936, the net income for the period must be placed on an annual basis and the tax computed in accordance with section 47(c) of the Revenue Act of 1936. 11. Petitioner's distributable share of the partnership profits of Felix Spatola & Sons for the year 1936 was not reported by petitioner in the return filed by him for the fiscal year ended September 30, 1936. 12. Petitioner's distributable share of the partnership profits of Felix Spatola & Sons for the year 1936 was reported by petitioner for the first and only time in the return filed by him covering*1411 the period October 1 to December 31, 1936. 13. A notice of deficiency was mailed to the petitioner under date of September 14, 1939, asserting a deficiency of $4,407.35 for the period October 1 to December 31, 1936. *1112 OPINION. SMITH: The question presented by this proceeding is whether tere shall be included in the net income of the petitioner for the period October 1 to December 31, 1936, his proportionate share of the profits of the partnership of Felix Spatola & Sons for the entire calendar year 1936. The petitioner admits that no part of such profits was included in his return filed for the fiscal year ended September 30, 1936. He argues, however, that the profits of the partnership were nearly all earned during the first nine months of the calendar year and that the profits for the last three months of the calendar year were only trivial and that his share of such part of the profits was only a few hundred dollars, which he claims is all that should be included in the short return. Section 181 of the Revenue Act of 1936 provides that "Individuals carrying on business in partnership shall be liable for income tax only in their individual capacity." *1412 Section 182 provides: There shall be included in computing the net income of each partner his distributive share, whether distributed or not, of the net income of the partnership for the taxable year. Section 188 provides: If the taxable year of a partner is different from that of the partnership, the distributive share of the net income of the partnership to be included in computing the net income of the partner for his taxable year shall be based upon the net income of the partnership for any taxable year of the partnership (whether beginning on, before, or after January 1, 1936) ending within the taxable year of the partner. Section 47 provides in material part as follows: SEC. 47. RETURNS FOR A PERIOD OF LESS THAN TWELVE MONTHS. * * * (b) INCOME COMPUTED ON BASIS OF SHORT PERIOD. - Where a separate return is made under subsection (a) on account of a change in the accounting period, and in all other cases where a separate return is required or permitted, by regulations prescribed by the Commissioner with the approval of the Secretary, to be made for a fractional part of a year, then the income shall be computed on the basis of the period for which separate return*1413 is made. (c) INCOME PLACED ON ANNUAL BASIS. - If a separate return is made (except returns of the income of a corporation) under subsection (a) on account of a change in the accounting period, the net income, computed on the basis of the period for which separate return is made, shall be placed on an annual basis by multiplying the amount thereof by twelve and dividing by the number of months included in the period for which the separate return is made. The tax shall be such part of the tax computed on such annual basis as the number of months in such period is of twelve months. *1113 Article 182-1 of Regulations 86, promulgated under the provisions of the Revenue Act of 1936, provides in material part as follows: * * * The distributive share of the net income of the partnership which a partner is required to include in his return is his proportionate share of the net income of the partnership, either - (a) For the taxable year upon the basis of which the partner's net income is computed, or (b) If the partner's net income is computed upon the basis of a taxable year different from that upon the basis of which the net income of the partnership is computed, for the*1414 taxable year of the partnership ending within the taxable year upon the basis of which the partner's net income is computed. Under all of the income tax acts a partner has been held to be taxable upon his distributive share of the income from the partnership for its fiscal year ending within the partner's taxable year. ; ; . The petitioner argues that by being required to include in his income for the three-month period ended December 31, 1936, his share of the profits of the partnership for the calendar year he is being subjected to an intolerable burden and that it could not have been the intention of Congress to impose such burden upon him. He does admit, however, that if the tax is not computed as the respondent has computed it he will never be required to pay income tax upon his share of the partnership's earnings for the first nine months of 1936. His argument is, therefore, that there should be included in his income for the short period only the earnings of the partnership for the last three months of 1936, which he contends upon the basis*1415 of evidence submitted amounted to only a few hundred dollars. It can not be denied upon the basis of the evidence submitted that the tax liability of the petitioner for the three-month period ended December 31, 1936, is high. It results, however, from a literal application of the language of the statute, which is unambiguous. If the fiscal year of the partnership of Felix Spatola & Sons had ended on January 31 instead of on December 31, no part of the profits of the partnership would have been included in the short return filed. In support of his determination the respondent cites , and . Both cases are in point, although they involved the provisions of a prior income tax act. In accordance with them and with the law and the Commissioner's regulations, the determination of the respondent is approved. Decision will be entered for the respondent.