Opinion

Wayburn v. Commissioner

  • 32 B.T.A. 813
  • 1935 BTA LEXIS 884
Court
United States Board of Tax Appeals
Filed
Jun 26, 1935
Status
Published
Author
McMahon
On the bench
McMahon, Arundell, Black, Seawell, Agree, Murdock
Cited by
17 cases
Authority
More cited than 10.7%

The opinion

McMahon,

dissenting: Upon the authority of the principles of R. P. Shea, 24 B. T. A. 798, and Helvering v. Taylor, 293 U. S. 507 , none of the $22,080.91 should be included in petitioner’s income. The instant proceeding is distinguishable from Joseph F. Logel, 24 B. T. A. 798, heard and reported with the Shea case. The undisputed, unimpeached, corroborated testimony of petitioner Way-burn and Mrs. Wayburn, taken together, to the effect that the whole amount was expended to promote the business of the corporation, is sufficient as a basis for the exclusion of the whole amount from his income as required by the principle of Cohan v. Commissioner, 39 Fed. (2d) 540, relied upon in the majority opinion. There is no basis for including all, or a part, of it. The inclusion of any part of it must be founded upon a mere guess, at best. The evidence fails to disclose any other figure. No finding should be made unless a basis for it can be pointed to somewhere in the record. There is nothing in the (Johan case which requires us to thus guess, under facts and circumstances such as we have presented here. Either all of the amount in question or none of it should be included in petitioner’s income and, as here pointed out, the evidence requires the exclusion of all of it.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

A word about cookies

We need a few to keep you signed in and the library working. The rest help us see which pages people use and where they get stuck. They stay off unless you say yes.