The opinion
Milliken,
dissenting: I concur in the solution set forth in the concurring opinion as to the manner in which the income of the decedent from the partnership is to be determined for' the period January 1,1924, to date of death. I dissent however from the action of the majority in affirming the determination of the respondent.
While we know the exact amount of the partnership income for the calendar year 1924 which was paid to or for the benefit of decedent during his lifetime, we do not know the net income of the partnership for the period January 1, 1924, to November 10, 1924, the date of death of the decedent. Both respondent and petitioner have proceeded upon the theory that the partnership did not terminate with the death of the decedent and computed the income of the partnership for the whole calendar year. In this computation they differ as to the amount of such income. Respondent determined one amount and then admitted that petitioner reported a larger amount. Petitioner allocates only so much of the annual income to the decedent as was either paid to him in his lifetime or during such period was paid for or on his account. This is not in accord with section 218. On the other hand, respondent has erroneously refused to consider charges against the partnership which existed but were unpaid at decedent’s death. Both computations are in error and we have not been supplied with sufficient data whereby we might correct them. The respondent admits in brief filed in this cause that his method of computation was erroneous and requests us to *1354 apportion the annual income between the decedent and his estate on the basis of time. In other words, he has requested us to indulge in speculation pure and simple. For all we know losses may have been sustained after the decedent’s death which would have wiped out almost entirely the income attributable to the period January 1, 1924, to date of decedent’s death. *
It is also pertinent to point out that the prevailing opinion overrules R. W. Archibald, Jr., et al., 4 B. T. A. 483. The petitioner tried this case at a time when he had the right to consider that the Arch-bald case, supra, represented the settled views of the Board. By the overruling of the Archbald case the petitioner is placed in a dilemma' that he would not have found himself in had the Archbald case been followed.
Bule 50 of our rules of practice specifically provides that the burden of proof shall be upon the petitioner, and the cases are legion where we have found it necessary to affirm the determination of the respondent due to the failure' of the petitioner to prove the errors averred. However, to affirm the determination of the respondent in the case at bar, when it clearly appears that his determination was in error and is so admitted by him in the brief filed, would result in the application of our rule to a state of case not intended and work a manifest injustice. We should not give sanction to that which on its face shows error. In my opinion this proceeding should be restored to the general calendar for hearing in due course and both parties given the opportunity to try the case in conformity with the rule laid down in the prevailing opinion.
VAN FossaN concurs in this dissent.