dissenting: The petitioner herein is the lessee of property of another railroad, all of whose stock it owns and with whom it has joined in the filing of a consolidated return. The petitioner *910deducted in its returns depreciation on the leased property and originally the Commissioner allowed the deduction. In these proceedings the Commissioner has raised as an affirmative issue the validity of this deduction. The majority opinion, while conceding the correctness of the Commissioner’s position that the petitioner as the lessee of property is not entitled to a deduction for depreciation thereon (Weiss v. Wiener, 279 U. S. 333), nevertheless refuses to allow the resulting deficiency because, as it is stated, the Commissioner does not carry his burden further and establish that the lessor likewise is not entitled to depreciation. The petitioner did not contend originally and does not contend in these proceedings that the lessor is entitled to depreciation and in view of the decisions in Georgia Railway & Electric Co. v. Commissioner, 77 Fed. (2d) 897, and Commissioner v. Terre Haute Electric Co., 67 Fed. (2d) 697, it would seem at least doubtful whether the lessor would be entitled to deductions for depreciation. At any rate, there is no showing that the deductions, if allowable, would be in the same amounts as claimed by the lessee. The respondent has met his burden of proof when he shows that the petitioner is not entitled to the deductions claimed and allowed, and the majority opinion carries the burden too far. The Commissioner should prevail.
Leech, TüeneR, and Tyson agree with this dissent.