# Herzberg v. Commissioner > United States Board of Tax Appeals · May 23, 1928 · 12 B.T.A. 62 URL: https://www.frixlaw.com/law-library/cases/4633380 ## Case - **Full name:** ABE HERZBERG, JR., v. COMMISSIONER OF INTERNAL REVENUE - **Court:** United States Board of Tax Appeals - **Decided:** May 23, 1928 - **Citations:** 12 B.T.A. 62; 1928 BTA LEXIS 3610 - **Precedential status:** Published - **Opinion:** Opinion - **Judges:** Lansdon - **Cited by:** 0 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/4633380 ## Opinion text ABE HERZBERG, JR., PETITIONER, v. COMMISSIONER OF INTERNAL REVENUE, RESPONDENT. Herzberg v. Commissioner Docket No. 10194. United States Board of Tax Appeals 12 B.T.A. 62 ; 1928 BTA LEXIS 3610 ; May 23, 1928 , Promulgated *3610 Petitioner's tax liability was correctly determined by the respondent under the provisions of section 1204 of the Revenue Act of 1917, amending section 8(e) of the Revenue Act of 1916. M. J. Holland, Esq., for the petitioner. L. A. Luce, Esq., for the respondent. LANSDON *62 The respondent has asserted a deficiency in income tax for the year 1917 in the amount of $1,542.15, and an overassessment for the year 1918 in the amount of $111.18. The only issue is whether the profits of a partnership of which the petitioner was a member were distributive in the taxable year on a calendar year or a fiscal year basis. FINDINGS OF FACT. The petitioner is a resident of the State of Nebraska, with his principal office and place of business at Omaha. In the taxable year he owned a half interest in the firm of Herzberg Brothers and was entitled to receive 50 per cent of the net distributive profits thereof. For the year 1917 Herzberg Brothers made its income and profits-tas return on the basis of a calendar year ended December 31. The petitioner kept his accounts and made his income-tax return on a calendar year basis. In his income-tax returns *3611 for 1917 and 1918 he included his share of the net distributive profits of Herzberg Brothers, determined on the basis of fiscal years ended respectively on January 31, 1917, and January 31, 1918. Upon audit of such returns the Commissioner adjusted the income thereof to the basis of a calendar year. OPINION. LANSDON: On the record, the Commissioner correctly determined the income of the petitioner for the year 1917 in conformity with the provisions of section 1204 of the Revenue Act of 1917, amending section 8(e) of the Revenue Act of 1916. Since an overassessment was asserted for 1918, the Board has no jurisdiction to redetermine the tax liability of the petitioner for that year. . Judgment will be entered for the respondent. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/4633380. Public record. Not legal advice.