# Wayburn v. Commissioner > United States Board of Tax Appeals · June 26, 1935 · 32 B.T.A. 813 URL: https://www.frixlaw.com/law-library/cases/4495720 ## Case - **Full name:** NED WAYBURN, v. COMMISSIONER OF INTERNAL REVENUE - **Court:** United States Board of Tax Appeals - **Decided:** June 26, 1935 - **Citations:** 32 B.T.A. 813; 1935 BTA LEXIS 884 - **Precedential status:** Published - **Opinion:** Dissent by McMahon - **Judges:** McMahon, Arundell, Black, Seawell, Agree, Murdock - **Cited by:** 17 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/4495720 ## Opinion text 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. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/4495720. Public record. Not legal advice.