respondent's determination that the corporation was not entitled to personal service classification should be found to be erroneous. The waiver which is presumed to embody the agreement between the petitioner and the respondent contained only one qualification: provided that such assessment shall be attributable to the allowance of a personal service classification to any corporation from which the undersigned received dividends or other income. There can be no question that the only assessment which the respondent could make pursuant to that restriction was that of a tax upon such of the petitioner's income as might emanate from a corporation which received personal service classification. The waiver contains no reference or limitation, however, as to the amount of such income or the tax therefrom arising. If it had been the intent of the parties to limit it to the then found amount of income or tax, such a provision could readily have been incorporated in the waiver. We are unimpressed by the argument that the respondent was limited to the amount of the tax in issue at the time the waiver was given. The waiver clearly contemplated the assessment of all tax that might be found to be due from the granting of personal service classification to the company. The stipulated facts do not suggest that any part of the deficiency is due to causes other than the granting of such classification. The respondent was within the terms of the waiver and justified in his action. See Austin Co. v. Commissioner, 35 Fed. (2d) 910. In A. L. Wilson Co., 24 B. T. A. 1056, we had before us a somewhat similar situation. In that case we held that the assessment and collection of increased income and excess-profits taxes were not barred by reason of the execution of a waiver which specified no definite amount to be assessed, although at the time of its execution representatives of the taxpayer and the Commissioner had understood and agreed upon a stated additional tax, much less than that named in the deficiency notice. See also Welz & Zerweck, Inc., 11 B. T. A. 1416. Decision will be entered for the respondent. 27 B. T. A. MAY KIMBALL SMITH, PETITIONER, V. COMMISSIONER OF INTERNAL REVENUE, RESPONDENT. Docket No. 63572. Promulgated January 31, 1933. A cemetery corporation exchanged its capital stock for land to Paul Reilly, Esq., for the petitioner. This proceeding is for the redetermination of a deficiency in income tax asserted by the respondent for the year 1929 in the amount of $301.31. The error alleged is the inclusion as taxable income of an amount received from a cemetery company not operated for profit. Petitioner further alleges that she is entitled to a credit, in addition to that already allowed, for income tax paid at the source on tax-free covenant bonds. FINDINGS OF FACT. In 1869 the West Laurel Hill Cemetery Company was incorporated under the laws of Pennsylvania for the purpose of acquiring land to be used for burials. Its charter made no provision for capital stock, but 3,000 shares, par value $50 each, were issued in exchange for land. In 1881 the company made a declaration of trust in respect of its land and other assets. The outstanding shares of stock were called in and canceled and in their stead the stockholders received new certificates in the following form: Whole No. of Shares 2,000 The West Laurel Hill Cemetery Company is entitled to This certifies that parts of shares in The West Laurel Hill Cemetery, under the trusts declared by The West Laurel Hill Cemetery Company. Transferable only on the books of said Company, in person or by attorney on surrender of this Certificate. In Testimony Whereof, The West Laurel Hill Company have caused this certificate to be signed by their President and countersigned by their Treasurer, this day of A. D. 18--. President. By the terms of the trust, upon the sale of lots or burial rights by the company, 10 per cent of the purchase price must be set apart as a permanent fund for preservation of the cemetery premises; such receipts must be applied to the current care and improvement of the cemetery and, if deemed expedient, not more than 10 per cent of the receipts may be set aside for the purchase of additional land or other useful or necessary purposes of the cemetery; and, finally, the company was "to apply, appropriate and divide the annual net income and monies from time to time received from said sales, not required for the aforesaid purposes, to and among the contributors aforesaid, and heirs, executors, administrators and assigns, in proportion to their respective interests and shares in the same and for which they shall hold certificates to be issued by the said company which said net income out of the proceeds of said sales to be paid by the West Laurel Hill Cemetery Company, aforesaid, is the consideration for the conveyance of the said premises to the company for the aforesaid purposes." It was further provided that the original incorporators should be deemed stockholders and that the holders of the certificates should have all the rights and privileges of stockholders in the company, with a vote for each share represented by said certificates, and be eligible as managers of said company. Petitioner acquired by inheritance and, during the entire year of 1929 was the owner of, a certificate of shares of participation in the trust. In that year, after paying expenses and setting aside amounts for the contingent funds, the cemetery company distributed to the certificate holders $105,000. Of that amount petitioner received $4,514, which was her proportionate share. Distributions to certificate holders had been made in each prior year. The times and amounts of such distributions lay entirely within the judgment and discretion of the board of managers. The surplus of the company was as follows: 1925 1926. 1927. 1928. 1929. $152, 709. 40 1, 020, 244. 14 1,063, 592. 66 1, 157, 488. 28 1, 273, 367. 82 In 1929 the cemetery company received $277,558 from the sale of burial rights. The March 1, 1913, value of those same burial rights was $150,698.04. The company also maintained a greenhouse, from which the gross receipts amounted to $97,261.37 in 1929. Its income tax return for that year also showed income from interest on bank deposits, rents and royalties, bonds, etc., amounting to $35,470.82. The company's expenses in operating the cemetery and the greenhouse were not segregated. For the taxable year they amounted to $172,182.49 and included salaries and wages, taxes, repairs, advertising, commissions to undertakers, etc. Also, $12,906.26 was charged off for depreciation and $9,100 for buildings torn down, in addition. to operating expenses. In her income tax return for 1929 petitioner reported the $4,514 received from the cemetery company, but did not include it as taxable income. Respondent included it and thus the deficiency of $301.31 resulted. Petitioner also reported receipt of interest on tax-free bonds, on which income tax was paid at the source, and deducted $80.02 as credit therefor. Respondent has allowed a credit of $106.70 in his computation of petitioner's income tax. OPINION. MARQUETTE: The question here presented is whether the amount distributed in 1929 by the West Laurel Hill Cemetery Company constituted a dividend within the meaning of the taxing statute. The petitioner contends that the cemetery company was a sole trustee not actively engaged in business and not in any way controlled by the certificate holders, and hence, that the distribution did not represent a dividend. The record is clear that the company has retained its corporate form and structure throughout. Although it called in its outstanding capital stock and substituted therefor certificates of participation in the cemetery property, the certificate holders had voting powers and were eligible as managers of the corporation. Their rights essentially were those of stockholders. The company advertised its cemetery lots to the public, sold such lots, paid commissions to undertakers, conducted a greenhouse business and invested in incomeproducing securities, and the board of managers in its discretion made annual distributions to the certificate holders in proportion to their participating shares. In the face of these facts we are unable to accept the petitioner's theory. While the cloak was that of a voluntary trust, the substance was an active corporate business. The petitioner further contends that the amount of distribution she received in 1929 was in payment for land contributed to the cemetery company in 1869 by her husband's grandfather. Hence, she says, he is taxable only upon the net gain derived from the sale. of burial rights in 1929. By using as a basis the March 1, 1913, value of the lots sold in 1929, and deducting the operating expenses, it can be shown that no net gain at all was derived from the sale of burial lots in 1929. The record shows, however, that when the land was contributed to the company, the latter's capital stock was issued to the grantors in exchange for the land. In our opinion the stock so issued constituted payment for the land. The transaction was no different from any other wherein a corporation exchanged its stock for property, a bargain and sale being thereby completed. As the land had already been paid for, the distribution received by petitioner from the corporation did not represent any part of the purchase price to the grantor, his successors or assigns. Section 115 (a) and (b) of the Revenue Act of 1928 defines "dividend " as being any distribution by a corporation to its stockholders, out of its earnings and profits accumulated after February 28, 1913. For the purposes of the act "every distribution is made out of earnings or profits to the extent thereof" and from those most recently accumulated. In the present proceeding the amounts distributed represented surplus remaining after payment of necessary expenses and providing for certain contingent funds. The company's surplus for 1925 was approximately $152,000 and increased each year until in 1929 it reached $1,273,367.82. We think, therefore, that the distribution here involved falls fairly within the purview of section 115 above referred to. The fact that nominally the distribution was made among beneficiaries of a trust rather than to stockholders eo nomine is not controlling. As we have pointed out above, the trust form adopted can not annul the fact that for many years, including that of 1929, an active business was carried on, profits were realized, surplus accumulated and distributions made to certificate holders in proportion to their respective interests. The money received by petitioner represented earnings and profits of and to the corporation of which she was a participating member, that is, a stockholder in everything by name. In our opinion the money in question falls definitely within the scope of the statute above cited. Petitioner raises another question, respecting her credit allowance for tax paid at the source upon certain bonds. In her return petitioner claimed a credit of $80.02. She was in fact entitled to a credit of $106.70 and the latter and larger amount was allowed by respondent in his computation. Petitioner alleges that the proposed deficiency really amounts to $327.99 although only $301.31 was asserted, the difference, $26.68, being the additional amount of credit for taxfree bonds allowed her by the respondent. Petitioner asks a refund of $26.68. The jurisdiction of this Board is primarily with respect to deficiencies in assessment of income taxes, not their payment. The Revenue Act of 1928 gives us jurisdiction to determine the amount of over |