The opinion
*8 OPINION.
Littleton:
The facts are not in dispute and have been stipulated to be as found by the Board in the Appeal of Gauley Mountain Coal Co., 3 B. T. A. 655. The petitioner claims that the application of law to these facts by the Board in its former opinion was erroneous and “ that for the calendar year 1920 the Commissioner erroneously and illegally decreased petitioner’s invested capital by disallowing the cost of.railway facilities based on its contract with the Chesapeake & Ohio Railway Company amounting to $250,000 or the unamortized portion thereof amounting to $149,999.96.”
We have carefully reconsidered this question in the light of the argument of counsel and brief filed. We are of opinion that the conclusion reached in the Appeal of Gauley Mountain Coal Co., 3 B. T. A. 655, was correct and we therefore approve the action of the Commissioner in excluding the amount claimed from invested capital for the year 1920. In view of this conclusion, the petitioner was not entitled to a deduction for 1920 of $3,511.43 as amortization.
Judgment will he entered for the Gommissioner.
Trammell dissents.