Appeal of Shamokin Valley & Pottsville Railroad

[605] OPINION. MaRQuette: The Commissioner’s motion to dismiss for want of jurisdiction as to the year 1918 must be overruled, on authority of the Board’s decisions in Appeal of E. J. Barry, 1 B. T. A. 156; Appeal of Hickory Spinning Co., 1 B. T. A. 409, and Appeal of Fort Orange Paper Co., 1 B. T. A. 1230. The amount of the 2 per cent tax paid by the Director General of Railroads in accordance with the provisions of the Federal Control Act is not income to the taxpayer. Appeal of New York, Ontario & Western Ry. Co., 1 B. T. A. 1172. Therefore, the Commissioner was in error in including such payments in this taxpayer’s gross income. The situation here presented in regard to the year 1918 is exactly . similar to that in the Appeal of Camden & Burlington County Ry. Co., 3 B. T. A. 602. As to so much of the tax resulting from the said inclusion as has been paid, to wit, $66.94, the Board has no jurisdiction. The balance, amounting to $53.56, was the subject of an abatement claim and, as it remains unpaid, it is disallowed. It follows that the claim for abatement for 1918, so far as it resulted from the said inclusion, should have been allowed in full, and that so much of the proposed deficiencies for 1919 and 1920 as result from the inclusion of the amount of the tax paid- by the Director General must also be disallowed.