(dissenting in part and concurring in part).
I dissent so far as this case concerns the taxpayer’s claimed deductions for depreciation on the hssets other than those acquired from George L. Waetjen & Co. Since these deductions were disallowed by the Commissioner the burden is upon the taxpayer “to point to an applicable statute and show that he comes within its terms.” New Colonial Ice Co. v. Helvering, 292 U.S. 435, 440, 54 S.Ct. 788, 790, 78 L.Ed. 1348.
Taxpayer’s petition states .its burden with respect to the matters first decided in the majority opinion. Its petition to the Tax Court shows it to be that the Commissioner erred “In holding, contrary to the law and the evidence, that the evidence does not support a finding that the shares received by the four, corporations, John A. -Gauger & Company,. Knox & Toombs, Inc., Durable Door Company and Metropolitan Industries, were not substantially in proporation to the assets and money which they exchanged for them.’.’
On this the Tax Court found that “It is sufficient, however, to say that the evidence does not support a finding that the shares received by the four corporations Gauger, Knox & Toombs, Durable Door and Metropolitan, were not substantially in proportion to the assets and money which they exchanged for them.”-
To say, in this modern America, that this is not a finding sufficient to dispose of the issue as -to whether taxpayer had sustained its burden seems to go back long before the Congressional legislation, 28 U.S. C.A. § 391, providing for appeals from court decisions that “On the hearing of any appeal, certiorari, writ of error, or motion for a new trial, in any case, civil or criminal, the court shall give judgment after an examination of the entire recórd before the court, without regard to technical errors, defects, or exceptions which do not affect the substantial rights of the parties.”
The principle established in § 391 is the more clearly applicable to the proceedings before such a tribunal as the Tax Court which has none of the technicalities of common law. This is a case coming from the Tax Court where the record on review is sufficient “to provide a basis for a final determination.” The majority opinion itself has taken from the record the basis on which our final determination should be made. Cf. Helvering v. Rankin, 295 U.S. 123, 131, 132, 55 S.Ct. 732, 79 L.Ed. 1343. I believe the evidence sustains the decision of the Tax Court.
With regard to the latter portion of the opinion, dealing with the assets acquired from Waetjen & Co., I concur.