Appeal of Darling Bros. Co.

2 B.T.A. 612

• Court: United States Board of Tax Appeals
• Decided: September 28, 1925
• Docket: Docket No. 1573
• Status: Published

Opinion

OPINION.

James:

The failure of the Commissioner or his refusal, for reasons which to him appear sufficient, to obey a subpoena of this Board can not serve to shift from the taxpayer to the Commissioner the burden or proof or of introducing evidence and establishing a prima facie case before the Board. For that reason the motion of the taxpayer for a determination of no deficiency in this appeal must be denied.

In paragraph C of the petition the taxpayer makes the following allegations:

(c) The ratio of average profits tax to net income as assessed and paid by representative corporations engaged in a like or similar trade or business to that of the taxpayer is substantially lower than the rate computed by the Commissioner in the case of this taxpayer for the year 1918.

The taxpayer has submitted no evidence in support of the foregoing allegations. The burden rested upon it to establish the basis of its appeal by making at least a prima facie case. This burden it failed to sustain, and for that reason the determination of the Commissioner must be approved.

Aeundell not participating.