Appeal of Mills , 1 B.T.A. 303 ( 1925 )

OPINION.

Smith:

This appeal is from the determination of the Commissioner of a deficiency in tax for the year ended January 31, 1918, in the amount of $36,025.06. The taxpayer does not protest the correctness of the computation showing the deficiency in tax as found, but seeks to have the Board reverse the Commissioner’s action in denying it consideration under the relief provisions of the Revenue Acts of 1917 and 1918, namely, section 210 of the Revenue Act of 1917 and sections 327 and 328 of the Revenue Act of 1918. The denial of such consideration was in a letter sent to the taxpayer by the Commissioner under date of December 1,1923, and is set forth in full in the findings of fact.

The grounds on which the taxpayer claims the right to consideration under the relief provisions of the law are (1) that a large percentage of the capital which was used in the operation of the business for the taxable year was borrowed capital, and (2) that the salaries paid to the taxpayer’s officers were abnormally low. The taxpayer has submitted no evidence whatever in support of its contentions. It was suggested by counsel for the taxpayer that the averments contained m the petition are supported by the taxpayer’s tax return for the year ended January 31, 1918. A copy of that return was submitted in evidence by the Commissioner. The only other evidence before the Board is a copy of the letter of December 1, 1923, also offered by the Commissioner.

Upon examination of the taxpayer’s return it is found that it does not support the averments contained in the petition in material points. The allegations of the petition were apparently taken from data which had been changed by the audit which was made by the Commissioner.

From the evidence before it the Board is unable to determine whether there is any abnormality of invested capital or of income which would entitle the taxpayer to consideration under the relief provisions of the Revenue Acts of 1917 and 1918 or whether consideration under those provisions would afford any relief. In view of this lack of evidence the determination of the Commissioner of a deficiency in tax for the fiscal year ended January 31, 1918, in the amount of $36,025.06 must be aonroved.