The opinion
SteRNhagen,
concurring: The petitioner, in my opinion, made out a 'prima facie case by proving a deduction in each of the earlier years without a tax benefit. Upon such a record, petitioner established that the subsequent recoveries in the tax year were not income and were not taxable according to the extant state of the law when the proceeding was heard. The failure of the respondent to go forward with evidence that a tax benefit had been derived which gave the recoveries the character of income necessarily results in a decision for the petitioner, and petitioner was not required to prove that in none of the intervening years was there in fact an absence of tax benefit.