19 T.C. 470">*471 The respondent determined a deficiency in the petitioner's income tax for 1945 1952 U.S. Tax Ct. LEXIS 18">*19 in the amount of $ 2,998.18. The petitioner has conceded certain determinations, leaving as the amount in controversy, $ 1,631.07. The only question presented is whether the petitioner's net operating loss for 1947 should be adjusted to reflect the receipt of $ 6,755.48 in 1947 for services performed over a prior period in determining the net operating loss carry-back deduction for the year 1945.

FINDINGS OF FACT.

The facts stipulated are so found.

The petitioner is an individual with principal office in New York, New York, and duly filed his income tax return for the year 1945 with the collector of internal revenue for the second district of New York. On or about October 29, 1947, the petitioner received a fee of $ 6,755.48 which constituted 100 per centum of the total compensation received for personal services rendered as trustee covering a period of 41 calendar months from April 28, 1943, to September 18, 1946, from the beginning to the completion of such services. The trustee fee of $ 6,755.48 received by the petitioner in 1947 for the purposes of section 107 (a), would be allocable as follows:

1952 U.S. Tax Ct. LEXIS 18">*20 For the taxable year ended December 31, 1947, the petitioner's adjusted net operating loss deduction applicable to the taxable year 1945, exclusive of the section 107 (a) income, totaled $ 29,244.94.

The Commissioner has determined that for the taxable year ended December 31, 1947, the petitioner's adjusted net operating loss deduction applicable to the taxable year 1945 totaled $ 22,489.46, which was arrived at as follows:

OPINION.

The sole question for determination in this proceeding is the amount of the petitioner's net operating loss carry-back 19 T.C. 470">*472 deduction for the year 1945. ¹1952 U.S. Tax Ct. LEXIS 18">*21 In 1947 the petitioner received a fee of $ 6,755.48 for personal services rendered as a trustee over a period of 41 months from April 1943 to September 1946. The parties do not disagree that the provisions of section 107 (a) of the Internal Revenue Code² would apply to this compensation received by the petitioner in 1947, but they differ, however, as to the effect of the receipt of this income upon the petitioner's net operating loss for that year.

The respondent contends that the petitioner cannot take advantage of section 107 (a), I. R. C., because the petitioner suffered a loss in the year of receipt of the compensation and no tax is due thereon. Thus, it is urged that the petitioner's net operating loss for 1947 must be calculated with the inclusion in 1947 gross income of the fee received in that year. The petitioner argues that1952 U.S. Tax Ct. LEXIS 18">*22 section 107 (a), I. R. C., is applicable to the fee received in 1947, and, as a result, the amount of $ 6,755.48 is to be allocated over the 41 months during which the services 19 T.C. 470">*473 were performed. Thus, petitioner concludes, his net operating loss for 1947 remains $ 29,244.94 unadjusted by the receipt of the trustee's fee.

Section 107 (a), I. R. C., limits the tax attributable to any part of such compensation as the petitioner received, which is included in gross income (all of it being so includible here) to an amount which shall not be greater than the aggregate of the taxes attributable to such compensation had it been included in gross income over the prior pertinent years. Section 107 (a), I. R. C., merely limits the tax in the year of receipt, it does not provide for the shifting of income or the recomputation of tax liability for other years. Federico Stallforth, 6 T.C. 140. The tax for the year of receipt is merely limited to an amount which is the lesser of two computations of the tax attributable to the fee. Edward C. Thayer, 12 T.C. 795; Maurice H. Van Bergh, 18 T.C. 518.1952 U.S. Tax Ct. LEXIS 18">*23 It is assumed for purposes of one computation, that the income had been included in gross income in prior years and the tax so computed is compared with the alternative tax computation computed without this assumption. The question here involved is not resolved by the application of section 107 (a).

Regardless of which method of computation of the tax under section 107 (a), I. R. C., results in the lesser tax and is applied to the compensation received in the current year, the amount of gross income to be taxed in the current year remains unaffected. The petitioner properly interprets section 107 (a), I. R. C., in contending that this section was intended to limit the tax to what it would have been, had the compensation been received ratably over the period of service. The tax to be limited, however, is the tax in the year of receipt and section 107 (a), I. R. C., does not have as its purpose the reopening of prior years' taxes and the shifting of income from the current year to others. George K. Ford, 18 T.C. 387. The petitioner's contention that his 1947 net operating loss is not to be reduced by the receipt of the fee in 1947, loses all force1952 U.S. Tax Ct. LEXIS 18">*24 when it is seen that regardless of section 107 (a), I. R. C., the $ 6,755.48 received in 1947 is not excludible from the petitioner's gross income in that year. Section 107 (a) is concerned with, and limits, the computation of tax, while section 122 deals with the computation of net income, or more specifically, with net operating loss deductions. Under the provisions of section 122, I. R. C., the net operating loss consists of the excess of the deductions over gross income with the exceptions therein specified. The $ 6,755.48 fee is includible in the petitioner's 1947 gross income without regard to the amount of tax placed upon it under the provisions of section 107 (a), I. R. C. So included, it reduces the 1947 net operating loss to $ 22,489.46. This amount is available as a net operating loss carry-back deduction for 1945.

Decision will be entered for the respondent.