22 T.C. 684">*685 Respondent determined for the short period from March 1, 1946, to December 31, 1946, deficiencies in the income tax of Andrew John Williamson in the amount of $ 2,893.30, and in the income tax of Mary M. J. Williamson in the amount of $ 1,750.74. The issue for decision1954 U.S. Tax Ct. LEXIS 163">*165 is whether respondent erred in determining deficiencies for the short period and in computing the tax by annualizing the income for that period in accordance with the provisions of section 47 (c) (1), Internal Revenue Code.

Respondent determined a deficiency in the income tax of Andrew John Williamson for the calendar year 1947 in the amount of $ 129.20, but no appeal was taken from this determination.

These proceedings were consolidated for hearing.

FINDINGS OF FACT.

Petitioners, Andrew John Williamson and Mary M. J. Williamson, are husband and wife and reside in Englewood, Tennessee. They filed their individual income tax returns for the taxable periods involved with the collector of internal revenue for the district of Tennessee.

Petitioners, prior to September 1, 1946, were partners in the operation of a hosiery mill doing business as Williamson Hosiery Mill. On or about that date the partnership ceased and the business was incorporated under the name of Williamson Hosiery Mills, Inc.

For a number of years prior to 1946 the partnership used as its accounting period the fiscal period March 1 to the last day of February. Petitioners had used the same fiscal period for filing 1954 U.S. Tax Ct. LEXIS 163">*166 their individual income tax returns.

In 1946 the certified public accountant handling petitioners' tax and accounting work, including the preparation of their returns, advised them to return to a calendar year basis for tax purposes. Petitioners agreed. All matters connected with the change were left in the hands of the accountant. Neither the petitioners nor their accountant requested or received the permission of the Commissioner to make the change.

On March 14, 1947, each of the petitioners filed an income tax return covering the period from March 1, 1946, to December 31, 1946. Andrew reported net income in the amount of $ 55,499.96 and Mary reported net income in the amount of $ 48,929.76. The tax computations 22 T.C. 684">*686 on the returns were made without annualizing the income in accordance with the provisions of section 47 (c) (1) of the Internal Revenue Code. Petitioners failed to make application for the benefits of section 47 (c) (2) of the Internal Revenue Code in accordance with the regulations promulgated thereunder, or otherwise.

Respondent, in his statutory notice of deficiency to Andrew, made the following explanation of his determination:

In your return you reported1954 U.S. Tax Ct. LEXIS 163">*167 net income in the amount of $ 55,499.96 and computed tax thereon without placing such income on an annual basis. Inasmuch as the return is for a short period, March 1 to December 31, 1946, due to a change in accounting period, it is held that income should be annualized and tax computed thereon as provided by Section 47 (c) (1) of the Internal Revenue Code.

The above determination is identical to that contained in respondent's notice to Mary except as to the amount of net income reported.

OPINION.

Respondent determined deficiencies in petitioners' income taxes for the short period from March 1, 1946, to December 31, 1946, in accordance with the provisions of section 47 (c) (1) of the Internal Revenue Code. Petitioners contend that these determinations are erroneous. They argue (1) that since the permission of the Commissioner to change accounting periods was not obtained, the period March 1 until the end of February remained the petitioners' correct taxable year and respondent cannot determine a deficiency for an unauthorized period, and (2) that, if the short period from March 1, 1946, to December 31, 1946, is the correct taxable period, then petitioners should be accorded the1954 U.S. Tax Ct. LEXIS 163">*168 benefits of section 47 (c) (2) where their failure to properly apply therefor was due to the inadvertence of their accountant.

Where the taxpayer does not properly request the permission of the Commissioner nor obtain his approval to a change in the accounting period but nevertheless files his return on the new basis, the Commissioner may disapprove the change and require the return to be filed on the old basis or accept the return on the changed basis, which constitutes approval of the change, and hold the taxpayer to it. Jonas Cadillac Co., 16 B. T. A. 932, affd. 41 F.2d 141; Clark Brown Grain Co., 18 B. T. A. 937; Linen Thread Co., Ltd., 14 T.C. 725, 732; Bass v. Stimpson, 20 T.C. 428, 433. Petitioners do not dispute the validity of the above rule, but rely upon the undisputed proposition that the Commissioner must compute the tax upon the basis of the old period, even though he may prefer to compute it upon the basis of the new period, if the taxpayer has not actually changed his accounting period. 22 T.C. 684">*687 Brooklyn City Railroad Co., 27 B. T. A. 77,1954 U.S. Tax Ct. LEXIS 163">*169 affd. (C. A. 2) 72 F.2d 274; Atlas Oil & Refining Corporation, 17 T.C. 733. The answer to petitioners' first contention depends, therefore, upon whether they actually changed their individual accounting periods to the new basis.

Respondent based his determination of the deficiencies upon a finding that there was a change in each of the petitioners' accounting periods. The taxpayer has the burden of proving that the respondent's determination is invalid. City Bank Farmers Trust Co., Executor, 41 B. T. A. 1. The cases on this point are legion. See 9 Mertens, The Law of Federal Income Taxation (1943), sec. 50.61. As the record is completely silent concerning the books and accounting procedures and periods employed by the individual petitioners, it is manifest that the petitioners have not sustained their burden of proof and have not demonstrated that respondent's determinations of the deficiencies were made for an unauthorized period and, hence, were invalid.

Petitioners contend, in the alternative, that, if the short period from March 1, 1946, to December 31, 1946, is regarded as the correct1954 U.S. Tax Ct. LEXIS 163">*170 taxable period, they should be allowed to compute the tax under section 47 (c) (2) rather than under section 47 (c) (1) of the Code. ¹ We do not agree. Section 47 (c) (1) states the general rule for computing 22 T.C. 684">*688 the tax for "the short period." Section 47 (c) (2) states the exception to the general rule and specifically provides:

The benefits of this paragraph shall not be allowed unless the taxpayer, at such time as regulations prescribed hereunder require (but not after the time prescribed for the filing of the return for the first taxable year which ends on or after twelve months after the beginning of the short period), makes application therefor in accordance with such regulations. * * *

Regulations 111, section 29.47-2 (c), prescribes the procedure for applying for the benefits of section 47 (c) (2). Petitioners did not make an application for the benefits of section 47 (c) (2) in accordance with the regulations, within "the time prescribed for the filing of the return for the first taxable year which ends on or after twelve months after the beginning of the short period," or otherwise. Therefore petitioners are not entitled to the benefits of that section. Louis Visintainer, 13 T.C. 805,1954 U.S. Tax Ct. LEXIS 163">*171 affirmed on this point (C. A. 10) 187 F.2d 519, certiorari denied 342 U.S. 858">342 U.S. 858. It is immaterial that petitioners' failure to make proper application for the benefits of section 47 (c) (2) was due to the inadvertence of their accountant. As this Court stated in the Visintainer case, supra (13 T. C. at p. 811), "The filing of the application is a condition precedent which we have no authority to waive."

1954 U.S. Tax Ct. LEXIS 163">*172 Decisions will be entered for the respondent.