Evans v. Commissioner

Ralph L. Evans v. Commissioner.

Evans v. Commissioner

Docket No. 111807.

United States Tax Court

1943 Tax Ct. Memo LEXIS 294; 2 T.C.M. (CCH) 117; T.C.M. (RIA) 43240;

May 21, 1943

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M. H. Donlon, Esq., for the petitioner. Benjamin W. Berg, Esq., for the respondent.

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STERNHAGEN

Memorandum Opinion

STERNHAGEN, Judge: The Commissioner determined a deficiency of $3,418.33 in petitioner's 1939 income tax, denying that the petitioner was a nonresident for more than six months, which would entitle petitioner to the exclusion from gross income of the pro rata portion of his income allocable to the period of nonresidence. The facts are all stipulated. Other adjustments are not contested.

The petitioner was out of the United States a total of 192 days, comprised of 162 days in one period and 30 days in another. The Commissioner stands upon the proposition that the exclusion provision of Section 116 (a) is applicable only when the six months period of nonresidence is made up of six calendar months. This proposition was fully considered in Michel J. A. Bertin, 1 T.C. 355">1 T.C. 355, and rejected. We follow that opinion upon the reasoning there set forth, and reverse the Commissioner's determination.

Decision will be entered under Rule 50.