the petitioner as a legacy and its basis of value determinable, therefore, under section 204 (a) (5), we must fix its basis as cost to the petitioner as required by subsection (a) of the same section. For these reasons, it is unnecessary for us to give this issue consideration. Judgment will be entered under Rule 50.

GEORGE E. SAULSBURY, PETITIONER, v. COMMISSIONER OF INTERNAL REVENUE, RESPONDENT.

Docket No. 59453. Promulgated February 11, 1933.

The petitioner and his wife, residents of Maryland, owned personal property as tenants by the entirety. Held that in the absence of an agreement between them for the distribution of the earnings on a contrary basis, the husband is taxable on one-half of the income from such property.

Joshua W. Miles, Esq., for the petitioner.

Dean P. Kimball, Esq., and Edward C. Adams, Esq., for the respondent.

OPINION.

ARUNDELL: From the stipulation of facts filed herein, which, by reference, we adopt as our findings of fact, it appears that the petitioner and his wife, residents of Baltimore, Maryland, in 1928 owned certain personal property as tenants by the entirety. In the separate return filed by the wife for 1928, she, with the consent of petitioner, reported for taxation all of the income derived from bank accounts, bonds, stocks, and profits on a stock trading account, which she and her husband held as tenants by the entirety. The respondent transferred one-half of such income to the return of petitioner and determined a deficiency of $423.53 in income tax for 1928. Whether this action was proper is the only question presented for decision. We think it was.

It is firmly established law in Maryland that, in the absence of an agreement between them to the contrary, neither spouse is entitled to all of the fruits of property held as tenants by the entirety. In Masterman v. Masterman, 129 Md. 167; 98 Atl. 537, a sum of money had been paid by an insurance company for a fire loss on premises, title to which was held as tenants by the entirety. The husband refused to restore the property with the insurance money, or use his share thereof for that purpose. In holding that if the property was sold by order of the court the proceeds of the sale, together with the insurance money, should be invested under the court's order and the net income therefrom distributed equally between the two tenants

until the death of one, when the corpus should be paid to the survivor unless sooner distributed either by agreement of the parties or the court's order, the court remarked:

In this state the constitutional provisions and the Married Women's Acts have changed the common law in some respects. * * So the expression in Marburg v. Cole, McCubbin v. Stanford, Brewer v. Bowersox, Stieff Co. v. Ullrich, 110 Md. 634, 73 Atl. 874, and probably other cases, that the estate by entireties with its incidents continues as at common law, is not necessarily to be construed to mean that a husband is still entitled to all of an estate by entirety as at common law, as such rights in the husband were not as incidents of that estate, but by virtue of the rights of a husband at common law. *

Such being the law of this state, it would be illogical and incorrect to say that the husband still has the same control over their property held as tenants by the entireties that he had by virtue of his common-law rights.

The same conclusion was reached in Brell v. Brell, 143 Md. 443; 122 Atl. 635, on an issue involving the right to the proceeds of sale of a farm and a mortgage given by the purchaser. In a more recent case, Whitelock v. Whitelock, 156 Md. 115; 143 Atl. 712; involving not only the principal sum of a mortgage, all of which was being claimed by the husband and one-half by the wife, but accumulated interest thereon, the court stated the prevailing law in this way:

At common law, the appellant, by virtue of his control of the wife's property, would have been entitled to all of the income. As affected by statute, however, from time to time, the control of the husband over the wife's property has changed, until now, under the Married Women's Property Acts (Code Pub. Gen. Laws 1924, art. 45, §§ 1-21), in this state the wife shares equally with the husband in the income from a tenancy by the entireties. The authority for this statement is Masterman v. Masterman, 129 Md. 167, 98 A. 537, in which the history of tenancy by the entireties, with the changes wrought by statute in the respective rights of husband and wife therein, have been so exhaustively treated in the opinion of Chief Judge Boyd that a discussion of the subject here would involve nothing but needless repetition. Furstenburg v. Furstenburg, 152 Md. 247, 136 A. 534, 35 A. L. R. 151.

While all of the cited cases relate to real property, tenancies by the entirety in personal property may exist in Maryland. Tyler v. United States, 281 U. S. 497; Brewer v. Bowersox, 92 Md. 567, 48 A. 1060; Whitelock v. Whitelock, supra.

It is clear from these decisions that during 1928 the petitioner was entitled to one-half of the income in question in the absence of an agreement with his wife for the distribution of the earnings on a different basis. It does not appear, and it is not claimed that such an agreement was ever entered into. The petitioner and his wife were of the opinion that when filing separate returns "they had a right with the consent of each other to place income in accounts held by the entireties on the return of either husband or wife." Such an understanding as existed between them did not extend beyond the

manner of reporting the income after it was earned and received under their entirety interests. Upon realization of the income from the entirety estate, one-half of it was the income of each and should be so treated in their separate returns. Poe v. Sanborn, 282 U. S. 101. Decision will be entered for the respondent.

L. J. CHRISTOPHER COMPANY OF DELAWARE, PETITIONER, V. COMMISSIONER OF INTERNAL REVENUE, RESPONDENT.

Docket No. 17448. Promulgated February 13, 1933.

George E. H. Goodner, Esq., for the petitioner.
Nathan Gammon, Esq., for the respondent.

OPINION.

BLACK: Our findings of fact and opinion in this proceeding were promulgated October 2, 1928, and are reported at 13 B. T. A. 729. On March 16, 1928, after this proceeding, together with proceedings in Docket Nos. 8931 and 16085, had been set for hearing at Los Angeles, California, on April 17, 1928, the respondent filed with the Board a motion asking that an order be made limiting the issues to be tried at the hearing to the issues defined in subdivisions (a) and (b) of Rule 62 of the Board. In other words, respondent moved that the hearing to be held in Los Angeles, California, be limited to issues not involving sections 327 and 328 of the Revenue Act of 1921. This motion was granted on the day on which it was filed. The fact that this motion had been filed and granted was at the beginning of the hearing brought to the attention of the presiding member of the Division to which the proceeding was assigned, at Los Angeles, and the Board's action in granting this motion was not revoked.

Although the effect of granting the motion of the respondent was to preclude both the petitioner and the respondent from submitting any evidence upon the question of the right of the petitioner to special assessment under the provisions of sections 327 and 328 of the Revenue Act of 1921, the Division, without first setting another hearing at which evidence could be submitted, proceeded to render an opinion in which it denied the right of the petitioner to the benefits of section 328 of the Revenue Act of 1921. The decision was not reviewed by the Board.

On August 14, 1929, a petition for review was filed with the Court of Appeals of the District of Columbia.

On December 14, 1931, this proceeding was remanded to the Board for further proceedings not inconsistent with the opinion of

the Court of Appeals of the District of Columbia, which is reported at 55 Fed. (2d) 532.

It is now contended by petitioner that this reversal of the Board's decision amounts to a mandate to the Board to allow petitioner special assessment. We do not agree with this contention.

A reading of the opinion of the court in the light of the assignment of error to be decided, we think will show that the court did not intend to make its decision as broad as its statement of the issue would indicate. The court as a preface to its opinion stated the issues to be decided under enumerations (1) and (2). Issue (1) concerns waivers and the statute of limitations and is not relevant to any issue now to be decided. Issue (2) was stated by the court as follows:

Whether, in the absence of fraud or other irregularity, a circuit court of appeals may review a decision of the Board of Tax Appeals sustaining a determination by the Commissioner of Internal Revenue that the appellant was not entitled to have its profits taxes determined especially under sections 327, 328 of the Revenue Act of 1921. In other words was appellant entitled to have its profits tax computed under the provisions of sections 327 and 328 of the Revenue Act of 1921, and if so, whether or not appellant has waived the right to have that question reviewed on appeal.

We think the statement of the issue by the court in (2), as above quoted, was somewhat broader than the issue the court was about to decide. As already pointed out at the beginning of this opinion, the Board had granted respondent's motion to confine the hearings in the first instance to issues other than special assessment. This was, in fact, carried out at the hearing and neither party offered any evidence with especial reference to the issue of special assessment. Notwithstanding this state of facts, the Board erroneously rendered decision against petitioner on the issue of special assessment and naturally petitioner in its appeal to the Court of Appeals of the District of Columbia assigned this action of the Board as error. The attorneys for the Commissioner did not undertake to defend the action of the Board in passing upon and denying the claim for special assessment, conceding that it was error, but contended that petitioner lost its right to complain of the error by failing to file a motion with the Board asking for a rehearing, calling the attention of the Board to the error which it had committed. The Court of Appeals of the District of Columbia denied this contention of the Commissioner and, as we have stated, reversed the decision of the Board and remanded the proceeding for further proceedings not inconsistent with the opinion of the court. We construe this mandate to be an instruction to the Board to give the petitioner a hearing on the issue of special assessment, and this we have done.

An additional reason for adopting the above construction of the court's mandate and not adopting the construction which petitioner has urged upon us, is that the Supreme Court has held that the courts are without power to review the decisions of the Commissioner denying special assessment under sections 327 and 328. Williamsport Wire Rope Co. v. United States, 277 U. S. 551; Duquesne Steel Foundry Co. v. Burnet, 283 U. S. 799. We must assume that the court did not intend to do that which the Supreme Court has held it has no power to do.

On March 15, 1932, the proceeding came on for hearing, in compliance with the mandate of the court, before a Division of this Board, and at this hearing it was agreed between petitioner and respondent, without petitioner waiving in any manner its contention that the Board was specifically instructed by the mandate of the court to grant special assessment, that no new evidence would be offered by either party on the issue of special assessment, but that the issue should be submitted on the pleadings and the evidence of record in Dockets 8931, 16085, and 17448, heretofore heard and decided by the Board.

So the issue we have to decide is whether petitioner is entitled to special assessment under the facts proved at the hearing at Los Angeles, California, April 17-18, 1928, in Dockets 8931, 16085, and 17448. The facts proved at said hearing are set forth in our findings of fact, reported in 13 B. T. A. 730 to 736, to which reference is hereby especially made.

We have reexamined all the evidence offered at the original hearing and we find no reason to change the findings of fact promulgated October 2, 1928, and reported in 13 B. T. A., supra. Upon those facts we hold that petitioner has not shown that it is entitled to special assessment.

The assignments of error contained in the petition with reference to special assessment are as follows:

The determination of tax set forth in the notice of deficiency is based upon the following errors:

(a) The erroneous conclusion that the invested capital of the petitioner could be determined.

(b) The erroneous conclusion that there were present during the period, in the income and invested capital of the petitioner no abnormal conditions which would justify the bureau in computing the profits tax of petitioner under the provisions of Section 328 of the Revenue Act of 1921.

It is perfectly true, as said by the Court of Appeals of the District of Columbia, in its opinion above referred to, that when the L. J. Christopher Company of California transferred its assets to the L. J. Christopher Company of Delaware, the latter corporation acquired a mixed aggregate of tangible and intangible assets for