*2505 1. Evidence fails to establish loss alleged to have been sustained in 1920.
2. Respondent's determination of depreciation approved.
*856 This proceeding is for the redetermination of a deficiency in income and profits tax for the calendar year 1920 in the amount of $703.33. It is alleged that in determining the deficiency herein the Commissioner erred in the following particulars:
In failing to allow the petitioner to deduct from gross income for the year 1920, the amount of $1,120 alleged to represent a loss sustained by reason of the sale of certain machinery.
In failing to allow the petitioner to deduct adequate depreciation on machinery, furniture and fixtures.
*857 FINDINGS OF FACT.
The petitioner is a corporation and was during the year 1918, and for some time subsequent thereto, engaged in the business of manufacturing clothes.
Sometime in 1918, the petitioner having secured orders for the manufacture of uniforms for soldiers, found it necessary to purchase certain machinery in order properly to conduct its business. *2506 The cost of the machinery purchased at this time was $1,235. In addition to the machinery purchased, the petitioner procured a buttonhole machine, for which, in addition to a specified rental, the amount of $150 was expended. The machinery was subsequently sold and the buttonhole machine was returned to the owner thereof.
During 1920, the petitioner had financial trouble. Its books of account were carelessly kept and did not properly reflect its affairs. About this time, a new set of books was opened and the old ones were subsequently lost.
In its return for 1920, petitioner claimed a deduction on account of depreciation in the amount of $1,688.53, of which amount the Commissioner disallowed $1,255.51.
OPINION.
LOVE: The petitioner contends that it sold $265for, in 1920, to one Soltzman, the machinery purchased in 1918 and that the buttonhole machine was returned in 1920, entitling it to a return of the $150, which it failed to get. By reason of these transactions, it alleges that it sustained a loss of $1,120.
We are unable to ascertain from the evidence whether the petitioner intended to claim the alleged loss of $1,120 as a part of the depreciation deduction*2507 of $1,688.53. At any rate, the respondent disallowed as depreciation the amount of $1,255.51 and in the absence of any evidence with regard to depreciable items, his determination in regard thereto must be approved.
However, if the petitioner did, in fact, suffer a deductible loss in 1920 by reason of the sale of certain assets as alleged, then, notwithstanding the fact that a deduction on account thereof had not been claimed in its return for that year, such loss may now be allowed as a deduction. We come, therefore, to the question as to whether the petitioner suffered the loss in 1920 as alleged.
The burden of proving the alleged loss is on the petitioner. It is necessary, therefore, that the petitioner establish, by preponderating evidence, that the assets in question were sold in the year 1920 at a price which was less than the depreciated cost thereof.
*858 After reviewing in detail the evidence adduced, we are not convinced thereby, that the petitioner suffered the alleged loss and, consequently, any deduction on account thereof is not allowable.
Judgment will be entered for the respondent.
Considered by TRUSSELL, SMITH, and LITTLETON.