*516OPINION.
James:The Commissioner moved to dismiss the appeal of this taxpayer on the ground that it consisted merely m an indirect application for a claim for .refund which this Board could not grant. But we have held in the Appeal of Hichory Spinning Company, 1 B. T. A. 409, that the Board may consider any matter which is a proper defense to an asserted deficiency. The taxpayer set up as a ground for appeal from the deficiency asserted by the Commissioner that the income originally returned ivas erroneous and that the taxpayer does not owe a deficiency. This issue is clearly before the Board and clearly within its jurisdiction. Its determination, to be sure, can not have the effect of ordering the Commissioner to pay a refund. Its determination can be at most that no deficiency is due. The motion of the Commissioner must, therefore, be denied.
The motion having been in the nature of a demurrer, the next inquiry is whether the facts as stated by the taxpayer, taken to be true and found in the above findings of fact, constitute a cause of, action. We must hold that they do not, and decide for the Commissioner on the merits under the authority of Irwin v. Gavit, 268 U. S. 161, decided April 27, 1925.
Arundell not participating.