DocketNumber： 282
Citation Numbers： 78 F.2d 667, 16 A.F.T.R. (P-H) 451, 1935 U.S. App. LEXIS 3821
Judges： Hand, Chase
Filed Date： 7/15/1935
Status： Precedential
Modified Date： 11/4/2024
(dissenting).
My inability to agree with my brothers upon a reversal of the decision of the Board of Tax Appeals relates only to the evidential force to be given the stipulation of the parties as to'the use of the money received by the taxpayer under the award. I agree that it could have used it, or any part of it, forthwith upon its receipt to replace the Wilmore with similar property and be free from income taxation either as a whole or pro tanto regardless of the lapse of time between the destruction of the Wilmore and the receipt of the award. But the burden to show such use was upon the taxpayer. Its “proof” was ambiguous and failed to satisfy a majority of the Board that it did more than make book entries to apply such receipts as a credit against prior expenditures. That is not *671 enough to obtain the exemption under section 112 (f) of the Revenue Act 1928, 26 USCA § 2112 (f). Bandes v. Commissioner (C. C. A.) 69 F.(2d) 812. And we ought not to reverse on the facts where the record is so equivocal.
For this reason, I would affirm.