*214 OPINION.
VAN FOSSAN: The petition in this case was ineptly drawn and does not, in so many words, state that the deficiency proposed against petitioner is as a transferee of the assets of the Jordan Silk Dyeing Co. and by virtue of section 280 of the Revenue Act of 1926. From the whole petition, however, it would readily be understood that such was the case. The uncertainty of the issue raised by the petition, if any such uncertainty existed, was entirely removed by the answer of the respondent, wherein he expressly admitted that the respondent has proposed to assess the deficiency of $720 against this taxpayer "as transferee of the Jordan Silk Dyeing Company for unpaid income and profits taxes due for 1921 from that company."
At the hearing, at which no appearance was made for petitioner, counsel for the respondent moved to dismiss "for failure of the petitioner properly to prosecute the case." In support of the motion counsel argued that "there can be no burden cast upon the Commissioner (the burden of proof under section 602 of the Revenue Act of 1928) on an issue which is not tendered in the*2628 petition." Looking to the probable purpose of the motion rather than to the form thereof and the reason assigned therein, and assuming it to be in the nature of a demurrer, or a motion to dismiss for failure of the petition to state a cause of action, or considering the motion simply as a motion to dismiss for failure to prosecute, we are of the opinion that the motion should be denied. The pleadings, taken together, clearly reveal the issue between the parties. Whatever advantage respondent might have taken of the shortcomings of the petition passed in this case with the filing of his answer.
Assuming the burden of proof imposed by law in such cases, the respondent proved that a deficiency in the amount of $720 was determined against Jordan Silk Dyeing Co. for the year 1921, and assessed on the January, 1926 list; that said company was dissolved on petition of its stockholders and by order of court March 26, 1926, at which time the assets were distributed to the stockholders pro rata, petitioner receiving cash in the amount of $3,618.83; that on July 1, 1926, the Commissioner determined that petitioner was liable in law or in equity as a transferee of the assets of the Jordan*2629 Silk Dyeing Co. and issued the deficiency notice from which petitioner appealed.
*215 Under these facts petitioner is liable as a transferee of the assets of the Jordan Silk Dyeing Co. for the full amount of the deficiency involved herein. ; .
Judgment will be entered for the respondent.