Franklin v. Commissioner

Board of Tax Appeals

Franklin v. Commissioner

37 B.T.A. 471, 1938 BTA LEXIS 1030

CourtUnited States Board of Tax Appeals

DecidedMarch 15, 1938

DocketDocket No. 78673.

StatusPublished

Cited by2 cases

This text of 37 B.T.A. 471 (Franklin v. Commissioner) is published on Counsel Stack Legal Research, covering United States Board of Tax Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Franklin v. Commissioner, 37 B.T.A. 471, 1938 BTA LEXIS 1030 (bta 1938).

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Opinion

[472]*472OPINION.

Steenhagen :

The Commissioner held that the shares sold were not susceptible of identification with any bought at a particular price, and that the first in, first out rule must therefore be used so as to use up first the earliest cost of $5,875, then the next cost of $2,403.83, thus leaving only the remainder to be applied against the last purchase of $43,250. The petitioner says that the shares sold could be identified with those last bought and that he did enough to establish such identity. Short of matching up certificates, which under the circumstances would have been an unreasonably cumbersome process, the petitioner did as much as might be expected to express an intent to sell the shares most recently bought, to communicate such intent to the person by whom the sale was to be executed, and immediately on his accounts to treat the shares sold as so identified. This satisfies the requirement of identity sufficiently to overcome the first in, first out rule, Helvering v. Rankin, 295 U. S. 123; Fuller v. Commissioner, 81 Fed. (2d) 176; Miller v. Commissioner, 80 Fed. (2d) 219. Cf. Kraus v. Commissioner, 88 Fed. (2d) 616.

The respondent’s determination is reversed.

Judgment will be entered wider Rule 50.

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[472]*472OPINION.

Steenhagen :

The Commissioner held that the shares sold were not susceptible of identification with any bought at a particular price, and that the first in, first out rule must therefore be used so as to use up first the earliest cost of $5,875, then the next cost of $2,403.83, thus leaving only the remainder to be applied against the last purchase of $43,250. The petitioner says that the shares sold could be identified with those last bought and that he did enough to establish such identity. Short of matching up certificates, which under the circumstances would have been an unreasonably cumbersome process, the petitioner did as much as might be expected to express an intent to sell the shares most recently bought, to communicate such intent to the person by whom the sale was to be executed, and immediately on his accounts to treat the shares sold as so identified. This satisfies the requirement of identity sufficiently to overcome the first in, first out rule, Helvering v. Rankin, 295 U. S. 123; Fuller v. Commissioner, 81 Fed. (2d) 176; Miller v. Commissioner, 80 Fed. (2d) 219. Cf. Kraus v. Commissioner, 88 Fed. (2d) 616.

The respondent’s determination is reversed.

Judgment will be entered wider Rule 50.

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37 B.T.A. 471, 1938 BTA LEXIS 1030, Counsel Stack Legal Research, https://law.counselstack.com/opinion/franklin-v-commissioner-bta-1938.

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