The opinion
*516 OPINION.
James:
The Commissioner moved to dismiss the appeal of this taxpayer on the ground that it consisted merely m an indirect application for a claim for .refund which this Board could not grant. But we have held in the Appeal of Hichory Spinning Com pany, 1 B. T. A. 409, that the Board may consider any matter which is a proper defense to an asserted deficiency. The taxpayer set up as a ground for appeal from the deficiency asserted by the Commissioner that the income originally returned ivas erroneous and that the taxpayer does not owe a deficiency. This issue is clearly before the Board and clearly within its jurisdiction. Its determination, to be sure, can not have the effect of ordering the Commissioner to pay a refund. Its determination can be at most that no deficiency is due. The motion of the Commissioner must, therefore, be denied.
The motion having been in the nature of a demurrer, the next inquiry is whether the facts as stated by the taxpayer, taken to be true and found in the above findings of fact, constitute a cause of, action. We must hold that they do not, and decide for the Commissioner on the merits under the authority of Irwin v. Gavit, 268 U. S. 161 , decided April 27, 1925.
Arundell not participating.