Freuler

This is an appeal taken; by the Commissioner of Internal Revenue to review a decision of the Board of Tax Appeals which held that there was only a deficiency of $95.61 in income tax to be paid by respondent, administrator of the estate of Louise P. V. Whit-comb, deceased, for the fractional last year 1921. The amount of the tax involved ivas $723.60, of which respondent contested $675.-77, which was sustained by the Board, leaving $627.99 now in controversy.

In 1889, A. C. Whitcomb died, leaving a will devising his estate in trust to bo paid to his widow, tho decedent, one-third of the interest or income for life, and the other two-thirds parts to his two children, with remainder over. There was a depreciation in the property of the estate, and during the taxable fractional year 1921 one-third of this depreciation was $7,167.19; however, during that fractional year the trustee under the will paid the decedent her share of the income without making any deduction for depreciation. The trustee divided the income of the estate among the heirs. Thereafter the residue legatees filed a petition in the probate court alleging that the payments so made were illegally made and that they…