The opinion
Withey, J., dissenting: In this case I must dissent upon the second issue, in other words the allocation of the attorney fee here involved upon a 60-40 per cent basis. I do so for the reason that the opinion as written though appearing to rely upon Cohan v. Commissioner, 39 F. 2d 540 , does not cite that case. I believe that in order to make a proper allocation it is necessary even upon the authority of Cohan that there be some ascertainable basis for such an allocation. None is disclosed by the findings of fact herein. The case cited as support for our right to allocate is Agnes Pyne Coke, 17 T. C. 403 . In that case it is clear that there is an ascertainable basis for the allocations made therein.
It is clear to me that this Court has the duty to make an allocation where possible, but it is equally clear that where a taxpayer has so far failed to sustain the burden of proof as to leave the record bare of any facts upon the basis of which we may reasonably make an allocation, it is our duty to uphold the respondent in his assertion of a deficiency. To hold otherwise is to clothe ourselves with the power of an equity court which powers we do not possess.