West 80th Street Garage Co. v. Commissioner

12 B.T.A. 798, 1928 BTA LEXIS 3445

Opinion

OPINION.

Morris:

While it appears sufficiently clear from the testimony that the negotiations entered into in February and March of 1919 resulted in the acquisition of certain of the assets of the Apthorp Garage Co. and the consummation of a lease on the premises occupied by that company, the evidence adduced does not enable us to find as a fact that the amount of $21,605.61, nor any part thereof, recorded in the books of account as “ good will,” was paid foT said lease. The lease itself was not offered in evidence at the hearing of this proceeding, nor was there any testimony as to the life thereof. Therefore, even assuming that a lease was acquired at a cost of $21,605.61 we have no means of determining the pro rata portion of that sum attributable to the taxable year in controversy. The petitioner’s counsel submitted a copy of a lease, together with other exhibits, with his brief, which purports to be the one entered into between the petitioner and the owner of the premises, but we have repeatedly held that ex-parte evidence can not be used in the trial of cases before this Board, and, therefore, those exhibits can not be considered.

The petitioner having failed to produce sufficient evidence in support of the contentions and allegations in its petition, the findings of the respondent must be sustained.

Judgment will he entered for the respondent.