# Avery v. Commissioner > United States Board of Tax Appeals · July 16, 1935 · 32 B.T.A. 948 URL: https://www.frixlaw.com/law-library/cases/4624240 ## Case - **Full name:** SEWELL L. AVERY, v. COMMISSIONER OF INTERNAL REVENUE - **Court:** United States Board of Tax Appeals - **Decided:** July 16, 1935 - **Citations:** 32 B.T.A. 948; 1935 BTA LEXIS 866 - **Precedential status:** Published - **Opinion:** Opinion - **Judges:** Smith - **Cited by:** 2 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/4624240 ## Opinion text SEWELL L. AVERY, PETITIONER, v. COMMISSIONER OF INTERNAL REVENUE, RESPONDENT. Avery v. Commissioner Docket Nos. 76053, 78474. United States Board of Tax Appeals 32 B.T.A. 948 ; 1935 BTA LEXIS 866 ; July 16, 1935 , Promulgated *866 The base for the computation of the 15 percent limitation on the deduction for charitable and other contributions is gross income less all permissible deductions except contributions, regardless of whether the tax is computed under the capital net gain or capital net loss provisions of the Revenue Act of 1928. Leland K. Neeves, Esq., for the petitioner. Chester A Gwinn, Esq., for the respondent. SMITH *948 OPINION. SMITH: These proceedings involve deficiencies in petitioner's income tax for the calendar years 1930 to 1932, inclusive, as follows: Docket No. Year Deficiency 76053 1930 $14,980.23 Do 1931 1,507.14 78474 1932 32,724.79 The parties have submitted a written stipulation settling all but one of the issues raised in the petitions and answers and setting forth all of the material facts. The one remaining issue, which is common to all three years, is whether the statutory 15 percent limitation on charitable contributions is to be computed on the entire net income or on the ordinary net income without deduction of capital net losses. The stipulated facts relevant to this issue may be summarized as *867 follows: During the years 1930 to 1932, inclusive, the petitioner's total net income, exclusive of capital net losses, his capital net losses, and charitable contributions were as follows: Year Net income Capital net losses Charitable contributions 1930 $156,812.46 $128,299.35 $86,937.79 1931 393,194.85 199,059.58 105,236.35 1932 377,799.79 797,717.89 54,921.34 The sole question here in issue has been determined by the Board in , after the submission of these proceedings. We there held, upon authority of Helvering v., that capital net losses as well as capital net gains are to be included in ascertaining the net income upon which the 15 percent limitation on charitable contributions is to be computed. For reasons therein stated, we so hold in these proceedings. Judgment will be entered under Rule 50. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/4624240. Public record. Not legal advice.