(dissenting).
It is the law of the State of California that earnings “plowed back” into the capital of the business shall be deemed to have earned 7% and no more unless the evidence introduced in the case indicates that the 7% rule would produce an erroneous result.
In this case the disclosure of facts to the Commissioner was comprehensive, and we may take it that he determined the 7% rule to be non-applicable. Upon such determination he proceeded to apply a formula designed for quite a different use. This produced a deficiency against the taxpayer.
A review before the Tax Court was had and that court approved the deficiency finding but, as specifically stated in its opinion, upon a presumption and not upon the merits of the controversy.
We have no doubt but that it is the law that a taxpayer cannot merely assert the incorrectness of the Commissioner’s determination and thereby shift the duty of justification to the Commissioner. The presumption of correctness would, in these circumstances, be fully effective. But these are not the circumstances of this case. The taxpayer accepted the statement of facts transmitted to the Tax Court as the basis of the Commissioner’s determination and affirmatively asserted and argued that upon *558this statement, unaided by further facts, the Commissioner was clearly wrong.
The Tax Court in its opinion says “ * * * we think that the burden can not be so shifted to the Commissioner. His determination effectually overcomes the ordinary presumptions of law, and the petitioners [taxpayers] continue to have the duty of going forward with their proof. [Citation.] This duty the petitioners have completely neglected, by reason of which the determination of the Commissioner must stand.”
Can it be that the Commissioner’s determination is locked against the Tax Court’s inquiry into the Commissioner’s determination and the evidence and the theory upon which it is based, when legal defects are alleged and asserted and pointed out by the taxpayer in an appeal to that court? Before he can have the Tax Court’s review, must he introduce some additional evidence though he is satisfied with the evidence already in? Mayhap there is no additional material and relevant evidence to introduce.
The necessary and practical, though easily disappearing, presumption in favor of the correctness of the Commissioner’s determination does not have this illogical reach. The Tax Court in its busy application has mistakenly applied the presumption in the disposition of the case.
The case should be reversed and remanded to the Tax Court with instructions to consider and find upon the issues raised upon the evidence and the pleadings, not excluding such additional evidence as may be proffered subject, of course, to the discretion of the court and to the ruling of the court as to its admissibility.
Order.
PER CURIAM.The decision herein (filed December 13, 1945)- is without prejudice to a motion to introduce further evidence, nor to the Tax Court’s independent judgment upon the facts now or hereafter introduced.
Upon Petition for Rehearing.
Petitioners seek a rehearing on the ground, among others, that the Tax Court erred in its calculations in determining the income of the respective taxpayers. Under our decision returning the case to the Tax Court, the petitioners are free to urge-such a contention there.
Petitioners further contend that in computing the income for each year and attributing to the investment of each the separate and community property the annual income from the capital of each, such federal annual accounting requirement in effect creates compound interest. They cite Pereira v. Pereira, 156 Cal. 1, 103 P. 488, 23 L.R.A.,N.S., 880, 134 Am.St.Rep. 107 and Estate of Lewis, 218 Cal. 526, 530, 24 P.2d 159. In the latter case, in determining at the death of one of the spouses, the earning of the community property, simple interest' was allowed for a period of 18 years. The California court had before it no such problem as that of federal or state (as in California) computation of annual income for income tax purposes, nor was such a question suggested in these cited opinions.
The petition for rehearing is denied.
Judge STEPHENS adheres to the position taken in his opinion heretofore filed.