The opinion
SteRNitagen,
dissenting in part: It does not appear in evidence whether the corporation between July 1,1922, and July 15, 1922, had earnings sufficient to support the dividend of July 15, 1922, and the Board assumes that the earnings of the last six months accrued ratably over such six months. I see no legal authority for this. It may in fact have been that the corporation earned enough of these profits before July 15 to absorb the loss of the first six months and to pay this dividend and, if so, the petitioner would have been subject to surtax. Under Mason v. Routzahn, 275 U. S. 175 , and section 201 (e), petitioner had the right to show the actual earnings for the period up to July 15 or that the corporation’s books did not show the amount of such earnings or profits. It failed to show either, and since the burden of proof was upon it, it should fail on this issue. The Board ought not to favor him with a mathematical assumption of fact and thus in effect reverse the burden of proof.