The opinion
Leech,
dissenting: I agree with the exposition of the applicable law in the prevailing opinion. However, it seems to me, the petitioner has overcome the presumption of correctness attaching to the de' termination of the deficiency.
I think it is implicit in the record that $537.97 was the entire amount of processing taxes paid on the cotton used by petitioner during the period in which the processing tax was in effect. In my opinion, it is unfair to make the contrary assumption as the majority opinion does. If that amount is the total tax thus paid, it requires only a simple computation to find that the tax paid on the cotton used in each thousand pairs of box toes varied between three and five cents per thousand. This seems comparatively insignificant and supports rather than attacks the credibility of the president of the petitioner when he testified, unqualifiedly, that he fixed the prices at which these box toes were sold throughout the entire period in controversy and that those prices were constant. This testimony was uncontradicted and unimpeached. I do not think it can be ignored. The witness impressed the sitting Division as entirely worthy of complete credence. The two classes of box toes were the only commodities manufactured and sold by the petitioner during the period in review. The relative insignificance of the tax item, coupled with the facts that the prices for the box toes were not changed during this time, a finding which I think this record warrants, and that the president of the petitioner, who fixed the prices, knew nothing about the processing tax until after its repeal, seem to me to be wholly sufficient to overcome the presumption that the petitioner company passed on and did not absorb the tax. See Hutzler Brothers Co. v. United States, 33 Fed. Supp. 801; Ney v. United States, 33 Fed. Supp. 554; Regulations 95, art. 16.
Tyson agrees with tins dissent.