OPINION.
Van Fossan, Judge:
In the first issue the respondent has predicated his determination of the deficiency and based his argument solely on the fact that the petitioner did not request or obtain permission of the Commissioner to change his “basis of accounting or method of reporting income” from the cash to the accrual method for the taxable year prior to making such change and so reporting his income.
The petitioner’s position can best be stated by the following excerpt from his brief:
Petitioners submit that on the basis of the law and the facts of this case, the change made was not a change in the method of accounting, and consequently not subject to the general rule relied on by respondent; that even if such change is a change in the method of accounting, petitioners belong to a special class of taxpayers for whom a special method of reporting has been provided and that changes to such method are explicitly and implicitly excepted from the operation of the general rule by the terms of Regulations 108 themselves, or, to state the proposition in another way, Section 19.22 (c)-6 grants a blanket permission to change and sets forth the terms and conditions upon which such change may be made.
The respondent bases his arguments on section 41 of the Internal Revenue Code1 and the condition imposed by section 19.41-2 of Regulations 1032 and states that the accrual method is mandatory when inventories are used and that a taxpayer must first secure permission from the Commissioner before he changes from one method of accounting to another. These principles are fundamental and admit of no argument even if the petitioner were inclined to controvert them. The respondent then anticipates that petitioner would rely on section 19.22 (c)-6 of Regulations 103 3 and seems to think that the petitioner’s contention is fully overcome by the provision of the regulation which states “if the use of the ‘farm-price method’ of valuing inventories for any taxable year involves a change in method of valuing inventories from that employed in prior years, permission for such change shall first be secured from the Commissioner as provided in section 19.41-2.”
It is obvious that the statutes, the Commissioner’s regulations, and the petitioner himself desire to proceed on the truism that returns of a farmer, as well as of all other taxpayers, must be made on the basis and in the manner which most clearly reflect his income. The peculiar problem of the farmer and the livestock raiser is to select the method which best achieves that end. They are allowed to use the cash receipts and disbursements basis, the ordinary inventory system, other modified types of accounting, including the crop basis, or the special “farm-price method” (the valuation of inventories at market price less direct cost of disposition).
We assume that out of a consciousness of the farmer’s potential and actual predicaments, section 19.22 (c)-6 and its predecessors were fashioned and promulgated by the Commissioner. That section sets up the farmer and the livestock raiser as a special class of taxpayers. If there were any conflict with its provisions and regulations under section 22 (c) of the code 4 couched in general terms, it is axiomatic that the former would prevail. See United States v. Chase, 135 U. S. 255; Monarch Life Insurance Co., 38 B. T. A. 801.
The petitioner argues that the only reference in sections 19.22 (c)-6 to 19.41-2 (requiring a taxpayer who changes the method of accounting employed in keeping his books to secure the consent of the Commissioner before computing his income upon the proposed new method) is the requirement that “if the use of the ‘farm-price method’ of valuing inventories for any taxable year involves a change in method of valuing inventories from that employed in prior years, permission for such change shall first be secured from the Commissioner as provided in section 19.41-2.” (Italics supplied.) He then demonstrates that no change in the method of valuing his inventories occurred, nor was any such change sought, in the taxable year, because he always kept a record of his inventories by the farm-price method. Thus there arose no necessity to invoke or consider that portion of section 19.22 (c)-6 relating to the requirement that the permission of the Commissioner was a condition precedent to his change from the receipts and disbursements basis to an inventory basis.
The point is well made. Thg petitioner did not make any change in his “method of valuing inventories,” as set forth in the regulation. The only change he made was in strict compliance with the initial portion of section 19.22(c)-6, to wit: “Farmers may change the basis of their returns from that of receipts and disbursements to that of an inventory basis,” provided certain definitely prescribed adjustments are made. The petitioner made such adjustments and submitted the required “adjustment sheet” for not only the preceding taxable year, but appropriate sheets for the three preceding taxable years.
Thus, by availing himself of a special privilege or right extended to him in section 19.22(c)-6, the petitioner undertook to spread over the three years the fruits of his labors expended during those years which were accumulated and sold in the taxable year. He accomplished the very purpose for which the regulation was designed to provide. The only reason advanced by the respondent for refusing to accept and approve the petitioner’s return submitted on the inventory basis is that petitioner failed first to obtain the Commissioner’s consent to the change from a receipts and disbursements basis.
The respondent does not challenge the fact that the petitioner’s return clearly and properly reflects his income, nor does he even suggest that the petitioner did not follow precisely respondent’s regulations which set forth the mode and mechanics of the change from a cash basis. Under the facts of record, section 19.22(c)-6 does not require the prior consent of the Commissioner, according to our interpretation of that section. Of course, if the petitioner should seek hereafter to change the method “elected” to another method, he must secure the Commissioner’s approval. But the present situation does not involve that necessity.
The petitioner compares section 19.22 (c)-6 with its counterparts in Regulations 45, 74, and 77 and asserts that it is substantially the same in all regulations. With this statement we agree. Under Regulations 45 the Commissioner issued an administrative ruling known as Office Decision 841 (4 C. B. 53, published in 1921). The relevant portion of that decision is as follows:
It is not contemplated by Treasury Decision 3104 that farmers must obtain formal permission in order to change the basis of their returns from that of receipts and disbursements to that of an inventory basis.
[T. D. 3104 inserted in Kegulations 45 a new article 1585 (a), relating to the right of the farmer to change the basis of his return from that of receipts and disbursements to that of an inventory basis. Article 1585 (a) is the predecessor of section 19.22 (c)-6.]
O. D. 841 has not been amended or rescinded. The only reference to it is found in I. T.
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OPINION.
Van Fossan, Judge:
In the first issue the respondent has predicated his determination of the deficiency and based his argument solely on the fact that the petitioner did not request or obtain permission of the Commissioner to change his “basis of accounting or method of reporting income” from the cash to the accrual method for the taxable year prior to making such change and so reporting his income.
The petitioner’s position can best be stated by the following excerpt from his brief:
Petitioners submit that on the basis of the law and the facts of this case, the change made was not a change in the method of accounting, and consequently not subject to the general rule relied on by respondent; that even if such change is a change in the method of accounting, petitioners belong to a special class of taxpayers for whom a special method of reporting has been provided and that changes to such method are explicitly and implicitly excepted from the operation of the general rule by the terms of Regulations 108 themselves, or, to state the proposition in another way, Section 19.22 (c)-6 grants a blanket permission to change and sets forth the terms and conditions upon which such change may be made.
The respondent bases his arguments on section 41 of the Internal Revenue Code1 and the condition imposed by section 19.41-2 of Regulations 1032 and states that the accrual method is mandatory when inventories are used and that a taxpayer must first secure permission from the Commissioner before he changes from one method of accounting to another. These principles are fundamental and admit of no argument even if the petitioner were inclined to controvert them. The respondent then anticipates that petitioner would rely on section 19.22 (c)-6 of Regulations 103 3 and seems to think that the petitioner’s contention is fully overcome by the provision of the regulation which states “if the use of the ‘farm-price method’ of valuing inventories for any taxable year involves a change in method of valuing inventories from that employed in prior years, permission for such change shall first be secured from the Commissioner as provided in section 19.41-2.”
It is obvious that the statutes, the Commissioner’s regulations, and the petitioner himself desire to proceed on the truism that returns of a farmer, as well as of all other taxpayers, must be made on the basis and in the manner which most clearly reflect his income. The peculiar problem of the farmer and the livestock raiser is to select the method which best achieves that end. They are allowed to use the cash receipts and disbursements basis, the ordinary inventory system, other modified types of accounting, including the crop basis, or the special “farm-price method” (the valuation of inventories at market price less direct cost of disposition).
We assume that out of a consciousness of the farmer’s potential and actual predicaments, section 19.22 (c)-6 and its predecessors were fashioned and promulgated by the Commissioner. That section sets up the farmer and the livestock raiser as a special class of taxpayers. If there were any conflict with its provisions and regulations under section 22 (c) of the code 4 couched in general terms, it is axiomatic that the former would prevail. See United States v. Chase, 135 U. S. 255; Monarch Life Insurance Co., 38 B. T. A. 801.
The petitioner argues that the only reference in sections 19.22 (c)-6 to 19.41-2 (requiring a taxpayer who changes the method of accounting employed in keeping his books to secure the consent of the Commissioner before computing his income upon the proposed new method) is the requirement that “if the use of the ‘farm-price method’ of valuing inventories for any taxable year involves a change in method of valuing inventories from that employed in prior years, permission for such change shall first be secured from the Commissioner as provided in section 19.41-2.” (Italics supplied.) He then demonstrates that no change in the method of valuing his inventories occurred, nor was any such change sought, in the taxable year, because he always kept a record of his inventories by the farm-price method. Thus there arose no necessity to invoke or consider that portion of section 19.22 (c)-6 relating to the requirement that the permission of the Commissioner was a condition precedent to his change from the receipts and disbursements basis to an inventory basis.
The point is well made. Thg petitioner did not make any change in his “method of valuing inventories,” as set forth in the regulation. The only change he made was in strict compliance with the initial portion of section 19.22(c)-6, to wit: “Farmers may change the basis of their returns from that of receipts and disbursements to that of an inventory basis,” provided certain definitely prescribed adjustments are made. The petitioner made such adjustments and submitted the required “adjustment sheet” for not only the preceding taxable year, but appropriate sheets for the three preceding taxable years.
Thus, by availing himself of a special privilege or right extended to him in section 19.22(c)-6, the petitioner undertook to spread over the three years the fruits of his labors expended during those years which were accumulated and sold in the taxable year. He accomplished the very purpose for which the regulation was designed to provide. The only reason advanced by the respondent for refusing to accept and approve the petitioner’s return submitted on the inventory basis is that petitioner failed first to obtain the Commissioner’s consent to the change from a receipts and disbursements basis.
The respondent does not challenge the fact that the petitioner’s return clearly and properly reflects his income, nor does he even suggest that the petitioner did not follow precisely respondent’s regulations which set forth the mode and mechanics of the change from a cash basis. Under the facts of record, section 19.22(c)-6 does not require the prior consent of the Commissioner, according to our interpretation of that section. Of course, if the petitioner should seek hereafter to change the method “elected” to another method, he must secure the Commissioner’s approval. But the present situation does not involve that necessity.
The petitioner compares section 19.22 (c)-6 with its counterparts in Regulations 45, 74, and 77 and asserts that it is substantially the same in all regulations. With this statement we agree. Under Regulations 45 the Commissioner issued an administrative ruling known as Office Decision 841 (4 C. B. 53, published in 1921). The relevant portion of that decision is as follows:
It is not contemplated by Treasury Decision 3104 that farmers must obtain formal permission in order to change the basis of their returns from that of receipts and disbursements to that of an inventory basis.
[T. D. 3104 inserted in Kegulations 45 a new article 1585 (a), relating to the right of the farmer to change the basis of his return from that of receipts and disbursements to that of an inventory basis. Article 1585 (a) is the predecessor of section 19.22 (c)-6.]
O. D. 841 has not been amended or rescinded. The only reference to it is found in I. T. 2614 (XI-1 C. B. 48), governing the change from the receipts and disbursements basis to the crop basis, a specialized method of inventory covering crops which require more than a year to mature and to be placed in condition for the market. The appropriate excerpt from I. T. 2614 is as follows: “Office Decision 841 (supra) and Mimeograph 3180 (C. B. III-l p. 64), to the extent that the same are inconsistent herewith, are revoked.”
We find nothing in I. T. 2614 inconsistent with the continued application of O. D. 841 to the facts before us. Thus the respondent himself, during a long period of years, has considered his own regulation as not requiring his consent to a change in the return of a farmer or livestock raiser from a receipts and disbursements basis to an inventory basis. The petitioner is sustained on this issue.
The second issue requires our determination of the correct amount of community property income taxable to the petitioner and his wife. The parties agree that income produced from the use of separate property and from the personal services of one spouse in California is partly separate income and partly community income and that the proper apportionment of income between that derived from the use of separate property and that derived from personal services is a question of fact.
The respondent’s position is that the petitioners have failed to prove that the amount of community income was greater than that determined by the Commissioner. The petitioner contends that the respondent’s apportionment of income was arbitrary and unreasonable and had no relation to the extent and character of the petitioner’s services or of the separate capital investment. He further argues that the formula established in Clara B. Parker, 31 B. T. A. 644, is applicable to the facts of record and should be used to ascertain the proper amount of income allocable to community property.
In the reallocation and readjustment of the petitioner’s income under section 19.22 (c)-6, based on the adjustment sheets filed by the petitioner, it may be that this question will become moot, since the Commissioner has determined that the petitioner’s Services were reasonably worth $10,000 a year. However, the record reveals that the petitioner’s total net worth, all invested in his business of grain and cotton farming, on January 1,1941, was $109,161.38, and that this sum remained constant throughout the year. Such amount constituted his separate property. Seven per cent is a fair return on his invested capital. The reasonable value of the petitioner’s service was stipulated to be $10,000. With these factors determined, a recompu-tation of the community income may be made, if need be, according to the formula established in the Clara B. Parker case and followed consistently in the later cases. Anton Dolenz, 41 B. T. A. 1091; J. Z. Todd, 7 T. C. 399; cf. Hugh B. Tingling, 7 T. C. 1393.
Keviewed by the Court.
Decisions will be entered wader Rule 50.
TURNER and Hill, JJ., dissent.