dissenting: The majority opinion appears not to have been based alone on the stipulated facts, but in part on representations in petitioner’s brief which are not covered by the stipulation. The discussion in the majority opinion intermingles the question of whether petitioner is entitled to a decision on the merits as the facts now stand with the question of whether it should have been granted a further hearing to enable it to adduce evidence of additional facts to meet its burden of proof. Such intermingling is so adroitly accomplished as to convert the sharp line of demarcation between the two questions into a zone of gradation from one into the other. The representations in petitioner’s briefs above mentioned are first set forth in the opinion as “contentions” of petitioner and later therein are apparently used as the basis of “fair” inferences or assumptions of fact to be considered in connection with the stipulated facts in resolving the merits of the controversy.
The only basis for a determination herein lies in the stipulated facts, nothing more. Representations of alleged facts by parties or their counsel outside the scope of the stipulated facts have no place in the consideration of the questions before us. We are not here considering whether a further hearing should have been or should be granted peti*969tioner, but only tbe question of whether on the stipulated facts petitioner had a tax benefit which renders taxable the recoveries on bad debts previously charged off and deducted. On this issue the burden of proof is on petitioner, not just part way through the proceeding, but all the way. I think the burden has not been met. The extent of the burden is not dependent in any way upon the action of respondent. I can not subscribe the statement in the majority opinion that “We may safely leave to another case the question of just how great a burden of proof the Commissioner could place upon the taxpayer.” The law, not the Commissioner, imposes the burden, without any degrees in the scale of its weight.
Petitioner had this burden regardless of the limited character of the ground of deficiency stated in the deficiency notice. Jacob F. Brown, 18 B. T. A. 859, 867. Recoveries on bad debts, other losses, taxes, interest, and expenses deducted in an income tax return are “assumed” to be includable in income for tax purposes until the contrary is shown. Hurd Millwork Corporation, 44 B. T. A. 786. Respondent at no time has the burden of proof respecting such taxability. I have not overlooked Philadelphia National Bank v. Rothensies, 43 Fed. Supp. 923 (U. S. Dist. Ct., E. Dist. Penn.) which appears not to accord with this view.
The majority opinion construes the statement of petitioner at the hearing that “The facts have all been stipulated” as meaning that the parties agreed that all facts material to the issue presented were included in the stipulation because this statement was not there challenged by respondent. I think such construction is unwarranted. The . stipulation itself negatives such construction. It provides “that the following statement of facts be taken by the Board to be true, with the right reserved to both parties to introduce further testimony in addition thereto. * * *”
The fact that neither party chose to introduce testimony as to additional facts means only that each party was content to submit the case on the facts stipulated. Petitioner evidently deemed that the facts stipulated established its contention “that the debts, when charged off in prior years, did not accomplish a reduction of tax.” Respondent in his statement at the hearing challenged the sufficiency of the facts to establish such contention. Petitioner was, therefore, on notice that respondent was joining issue with it not only on the determinative issue presented by the petition, namely, whether a tax benefit resulted in the charge-off of bad debts, but also on the sufficiency of the facts stipulated to resolve the issue in petitioner’s favor. Furthermore, no duty rested on respondent to advise petitioner at or in advance of the hearing in what particular he deemed the stipulated facts insufficient to establish petitioner’s contention, or to suggest the materiality of facts additional to those stipulated. There is no reason to assume *970that the parties were not dealing at arm’s length in the preparation and execution of the stipulation. How then can it be claimed, as indicated in the majority opinion, that respondent’s failure, except in his brief, to state the grounds of his contention that petitioner failed to prove no tax benefit from the bad debt charge-off, unfairly placed petitioner at a disadvantage ? The brief is the vehicle in which the arguments are usually and properly carried.
Evidence to establish lack of tax benefit, if such was the case, does not appear to involve unusual difficulty and the information with respect thereto is peculiarly within the knowledge of petitioner. To enable respondent to acquire such information would require an audit of petitioner’s books over the period of years extending from a time antedating the first year of charge-off through and perhaps beyond the taxable year.
Recoveries on bad debts are not the only recoveries on prior deducted items that might effect a tax benefit from the deduction of bad debts. If net losses in years of bad debt deductions are recouped by recoveries of other deducted items, such as taxes, interest, operating expenses, loss by theft and loss by worthlessness of securities, etc., or, if net losses are eliminated by adjustment of depreciation allowance, it is obvious that a tax advantage would result from the bad debt deduction as of the year of such charge-off. To present the facts, if any, negativing such tax advantage is the burden of petitioner. It can not meet the burden merely by showing that in the year of the bad debt charge-off it had a net loss and that the recoveries thereon are less than such net loss. It can not lay its burden down at that point and force the respondent at his peril to shoulder the load thenceforward, for the patent reason that by stopping at such point petitioner has omitted the disclosure of facts (peculiarly within its knowledge) necessary to determine whether it had a tax benefit.
I submit that the facts do not show that petitioner had no tax benefit from the bad debt charge-off. To show that was its burden, under the law, despite the padding sought to be placed under its packsaddle by such expressions in the majority opinion as “the burden that was fairly cast upon him”, and “He had no reason to believe that his burden was any greater than that which he has sustained by the stipulation.”
Based solely on the data in the stipulated facts, it appears affirmatively that petitioner had a tax benefit from deductions for bad debts in each of the years 1931, 1934, 1935, and 1936, the taxability of the recoveries on which is involved in this proceeding. In the year 1931 petitioner deducted $37,092.67 for bad debts with a resulting net loss, of $24,304.46. Of this deduction $12,788.21 offset taxable income. In the years prior to the taxable year petitioner recovered $1,891.5.0 *971on such debts. In the taxable year petitioner recovered thereon $300.88. To the extent that such deduction offset income, petitioner had a tax benefit.
In the year 1934 petitioner deducted $65,276.45 for bad debts with a resulting net loss of $68,404.12. But for such bad debt deduction the net loss for that year would have been only $3,127.67. In the years prior to the taxable year petitioner recovered on such debts $5,731.97. Eelating such recoveries back and crediting them to 1934, the net loss for that year would be reduced to $62,672.15 with the result that $2,604.30 of the bad debt deduction for that year offset income. In the taxable year there was a further recovery on such debts of $513.12. To the extent that taxable income of $2,604.30 was offset by the bad debt deduction petitioner had a tax benefit.
In the year 1935 petitioner deducted $21,758.29 for bad debts resulting in a net loss of $9,915. Of the bad debt' deduction $11,843.29 offset taxable income and to that extent petitioner had a tax benefit. In the years prior to the taxable year petitioner recovered $1,654.48 on such bad debts. In the taxable year there was a recovery on such debts of $528.20.
In the year 1936 petitioner deducted $5,536.07 for bad debts, resulting in a net loss of $582.43. Of such deduction $4,953.64 offset income and to that extent petitioner had a tax benefit from such deduction. In the years prior to the taxable year petitioner recovered $290 on such debts. In the taxable year there was a recovery of $152.20 of such debts.
In the year 1937 petitioner deducted $2,708.70 for bad debts resulting in a net loss of $3,040.37. In that year the bad debt deduction served only to increase a net loss otherwise existing. The net loss before the bad debt deduction was $331.67. In the taxable year there was a recovery on such debts of $268.89. Hence, it does not appear from the data contained in the stipulated facts that petitioner had any tax benefit from bad debt deductions in the year 1937.
The grounds of my dissent are :
1. That it is not shown by the stipulated facts that petitioner had no tax benefit from the bad debt deductions, the recoveries on which are sought to be taxed by respondent.
2. That it is shown by the stipulated facts that petitioner received tax benefit from bad debt deductions in all but one of the years in which bad debt charge-offs are herein involved.