The opinion
*920 OPINION.
Love:
It is contended by the petitioners that the decedent’s distributive share of commissions earned by the partnership prior to his death was capital in the hands of the estate and was not taxable income when received by it. The respondent, on the other hand, contends that the commissions constituted taxable income when received by the estate.
The same issue with respect to the year 1920 as is presented in this proceeding for the year 1922 was decided favorably to the petitioners by the United States Court of Claims in Nichols v. United States, 6 Am. Fed. Tax Rep. 6592.
The Board, in considering substantially the same issue, in William G. Frank, Administrator, 6 B. T. A. 1071, cited with approval Nichols v. United States, supra. Accordingly, the Commissioner’s action in including the amount of $2,752.83 in income of the estate for the year 1922 is reversed.
Judgment will he entered for the petitioners.