Appeal of Fippin

OPINION.

James:

The correct solution of this appeal requires that there be deducted from the total cost of the property of $12,100, as above set forth, the depreciation sustained during the years when it was owned and occupied by the taxpayer; that there also be deducted any amount claimed as deductions upon prior returns which duplicated the amounts above set forth, particularly in connection with the planting, cultivating, and otherwise improving the trees and shrubbery on the place. Such adjustments were a matter of affirmative proof to be introduced by the Commissioner. Instead of so doing, the Commissioner contented himself with general cross examination of the taxpayer. We are unable to determine from the record any basis of adjustment other than that set forth in our decision. There are intimations in the record that deductions as above mentioned were claimed by the- taxpayer' and allowed by the Commissioner in earlier years. But this Board cannot make findings of fact in definite amounts upon intimations. The taxpayer and the Commissioner must be expected to plead and to establish the facts upon which they rely in support of their respective positions. In the absence of proof, therefore, the Board can only base its decision upon the record, determining the ultimate issue in accordance with the evidence before it.