The opinion
*295 OPINION.
SterNhagen :
The foregoing findings of fact, with the exception of findings 11 and 12, are those proposed by the petitioner, and are amply supported by the evidence. There is no doubt from the evidence that the partnership of de Paoli & Kelly incurred the contract obligation to pay to each of the two employees 25 per cent of the partnership profits after subtracting an amount equal to 10 per cent upon the partnership investment. From the official proceedings contained in the judgment roll of the Supreme Court of New York in each of the lawsuits brought by the employees to enforce this obligation, it appears that partnership capital account was $30,845.27, and that the profits for 1920 after deducting said 10 per cent amounted to $32,511.80, and for 1921 to $31,875.70. The judgment of the court in those proceedings establishes that the liability existed in respect of the profits of those years.
Although petitioner’s counsel was clearly and definitely put upon notice at the trial before the Board that the right to the deduction was materially affected by the question whether, under section 212 (b), the accounts were kept on the cash basis or on some other basis, he *296 nevertheless failed to make the proof. On the other hand, the respondent introduced in evidence the original individual returns of the decedent, and it appears that the 1920 return is expressly stated to be upon a cash basis, and the 1921 return, while making no express statement in this respect, appears to be upon the same basis. There is not a scintilla of evidence as to the accounting method of the partnership or the basis of its returns.
That a taxpayer who consistently makes his returns upon the basis of income actually paid, may not at the same time so far depart from the adopted method as to deduct some items not actually paid and thus distort his income for a single year and reduce his tax, should be plain, and has been frequently decided. United States v. Mitchell, 271 U. S. 9 ; 5 Am. Fed. Tax Rep. 6008; Henry Reubel, 1 B. T. A. 676; Atlantic Coast Line R. R. Co., 2 B. T. A. 892. Here the amount was not paid until 1922, and in the absence of any evidence as to the partnership basis and the apparent cash basis of the decedent, it may not be deducted in 1920 or 1921.
As to 1922, no deficiency has been determined by the respondent, and the Board is without jurisdiction of that year. Cornelius Cotton Mills, 4 B. T. A. 255. The determination of the respondent must therefore be sustained.
Judgment will be entered on 15 days’ notice, under Rule 50.
Considered by LaNsdoN and Artjndell.