OPINION.
MaRquette:
The Commissioner's proposition of law denying the Board's jurisdiction as to the year 1918 is regarded, for purposes of this appeal, as a plea in bar, and it is hereby overruled on authority of the Board's decisions in Appeal of E. J. Barry, 1 B. T. A. 156; Appeal of Hickory Spinning Co., 1 B. T. A. 409; and Appeal of Fort Orange Paper Co., 1 B. T. A. 1230.
The amount of the 2 per cent tax paid by the Director General of Bailroads in accordance with the provisions of the Federal Control Act is not income to the taxpayer. Appeal of New York, Ontario & Western Ry. Co., 1 B. T. A. 1172. The Commissioner was therefore in error in including such payments in the gross income of this taxpayer.
However, with respect to the year 1918, it appears from the petition that a portion of the tax assessed on such inclusion has been paid, and a claim for abatement filed as to the balance thereof, to wit, $29.88. As to so much of the tax for 1918 as has been paid, the Board has no jurisdiction, and can only direct that the amount of the tax for that year unpaid be disallowed. It follows that the claim for abatement, in the amount of $105.54 for 1918, should have been allowed in full, and that so much of the proposed deficiencies for 1919 and 1920 as results from the inclusion of the amount of the tax paid by the Director General must be disallowed.