(concurring). As the tax imposed is only upon so much of the capital, surplus, and undivided profits as are *330used in the banking business, Congress plainly contemplated that less than the aggregate of these elements might be so used. If the intention had been to tax all the company’s assets which were so used, it would have been easy to say so. The addition of the words “surplus and undivided profits” to the word “capital” shows that Congress was confining the tax to a specified portion of the company’s assets. ‘ Ob-' viously when a corporation, as in the present case, does other business in addition to banking, the whole capital, surplus, and undivided profits cannot be used in each. How much, if any, is used, must be a subject for proof. This is plainly stated in Canal Co. v. New Orleans, 99 U. S. 97, 25 L. Ed. 409, where, however, the court held that no such proof had been offered. Trust companies have a large and quick asset in the shape of their depositors’ accounts, which are no part of their capital, surplus, or undivided earnings. When the only banking done is, as in Central Trust Co. v. Treat (C. C.) 171 Fed. 301, the opening of deposit accounts and lending of money on collateral, it would be quite natural for the company, in doing the business, to resort first to deposited funds, and perhaps to restrict the business to those funds. This is true in a less degree when the banking powers are more extensive. While mere entries in the company’s books might not be decisive, still they may constitute part of the proof, and resort should not be had to presumptions until positive proof fail.