dissenting: The majority opinion so misplaces the burden of proof, that I must dissent. The Commissioner in the deficiency notice, determined, separately for each year, that the balance in the reserve for bad debts, at the close of the previous year, was adequate and that no addition to reserve was warranted. It has long been settled that correctness of the Commissioner’s result, and not his explanation, is the issue. Edgar M. Carnrick, 21 B. T. A. 12; Charles J. O'Laughlin, 30 B. T. A. 1327; Southern Railway Co. v. Commissioner, 74 Fed. (2d) 887. But it is not necessary in this case to rely on that principle, for it is apparent from the entire record that the adequacy of the existing reserve was in question and therefore examination thereof required, and that the issue arose merely because of a difference in views as to what was necessary to show the condition and amount of existing reserve. The petitioner was in nowise surprised by a view tardily taken by the respondent. It nowhere so contends, and the petition shows the then existent conflict of view when it is alleged:
Petitioner avers that in considering the propriety and reasonableness of a deduction claimed as an addition to its bad debt reserve the size of the reserve at the time of making such addition is to be determined by the sum total of the deductions claimed for such purpose in previous income tax returns minus the actual charge-offs for bad debts over said period^, and is not to be arrived at by taking the sum total of the amounts which may have been added by petitioner to a reserve account for bad debts on its own books over said period and subtracting therefrom the actual charge-offs for said period.
In other words, the petitioner did not agree with the Commissioner’s idea of examining into and explaining reserves appearing on its books, but insisted that it was only necessary, in order to arrive at the reserve on hand, to deduct the total actual charge-offs from the total deductions “claimed.” Obviously “allowed” was meant. (In fact the petitioner did not even attempt to meet the requirement so suggested by itself, for at trial, for reasons unexplained, in introducing its returns in evidence, it stopped short with the year 1934; to be more accurate, after offering the income tax return for 1935, petitioner’s counsel withdrew the offer,.stating, “I meant to stop with the calendar year 1934.” Thus it is plain that the petitioner never, in fact, showed the condition of its reserve at the end of 1935, the year next preceding the taxable years. The respondent placed the return for that year in evidence, as well as those for 1936 and 1937.) I think that the record here clearly calls for more candor by the petitioner. Its income tax returns showed accounts receivable on hand at the date of its organization, thus showing them to have been purchased or acquired otherwise than by its own business operations; and, f urther,. showed a reserve for bad debts set up against them. The cost does not appear. The essence of the respondent’s position is that, since purchased accounts receivable must be handled on a basis of cost, such a record requires clarification, as to whether such accounts receivable were so treated, as otherwise improper charges against reserve would result. I find no reason to excuse the petitioner from such explanation. The true state of the reserve at the beginning of the taxable years depended upon the treatment of accounts receivable, affirmatively appearing as not created by the petitioner, and commingled with own-created receivables — with the income tax return for petitioner’s first year disclosing petitioner’s estimate that $16,033.01 were bad, in that a reserve in that amount for bad debts was set up. I am unable to follow tbe reasoning of tbe majority opinion that we should assume that allowances for reserve made by the Commissioner in previous years were made after he was satisfied that there were no improper charge-offs of accounts receivable purchased at a discount. On the contrary, we should assume the correctness of the Commissioner’s determination, and put the burden on the petitioner to show why it is not correct. The petitioner produced some of its books “because all of the books of the company would be too voluminous to bring over.” Some of its records were “in such bad shape that they áre not readily accessible.” I find no reasonable effort to meet the burden of showing the Commissioner’s determination to be erroneous; and in its reply brief the petitioner never mentions the arguments made by the respondent, in his brief, on this point. Yet, the majority opinion dwells upon the dearth of evidence — particularly as to Exhibit D. That instrument was, however, placed in evidence upon the particular announcement of “No objection” by the petitioner, and in no degree has the petitioner ever questioned the accuracy of the figures placed in evidence by the respondent, and relied upon by him. Unless a mere showing of items of charge-off and allowed deductions for reserve is sufficient to fix the amount of reserve on hand, against a contrary determination and in the face of a book record replete with confusion, I believe that the petitioner should have explained.
To say the least, it should have explained the fact shown by the record, that it credited to its'bad debt reserve $6,366.77 in 1936 and $3,508.40 in 1937. Both amounts are considerably greater than the deductions for reserve approved by the majority opinion, and, on the theory of the majority opinion itself, demonstrate (if these credits are not to be wholly disregarded and the petitioner relieved of explanation, even in the taxable years) that at the end of the year 1936 the petitioner may have had an actual reserve of $5,861.37 (the difference between the credit to reserve, $6,366.77 and —$505.40 shown in the majority opinion as the reserve at the end of 1936) and in the same way, at the end of 1937 petitioner may have had a reserve of $5,065.58, and thus no additions would be necessary — for these credits may have been recoveries upon bad debts charged off in previous years. Nevertheless, the petitioner has offered no more explanation of these items than of the earlier condition of its books. I dissent.