(dissenting).
In order to be entitled to the exemption it claimed, the petitioner had to show clearly that it came within some statute which gave it the advantage of running a radio broadcasting station income tax free. Exemption statutes should be strictly construed. Helvering v. Ohio Leather Co., 317 U.S. 102, 63 S.Ct. 103, 87 L.Ed. 113; Helvering v. Northwest Steel Mills, 311 U.S. 46, 61 S.Ct. 109, 85 L.Ed. 29. At least that much is required for the protection of the revenue. But that is not all. A taxpayer who claims the privilege of preferred treatment by way of exemption must prove himself clearly within a statute not only creating the privilege but creating it for him. Compare New Colonial Co. v. Helvering, 292 U.S. 435, 54 S.Ct. 788, 78 L.Ed. 1348; White v. United States, 305 U.S. 281, 292, 59 S.Ct. 179, 83 L.Ed. 172.
Compliance with such requirements imposed upon this petitioner the burden of proving in the Tax Court that- it was (1) a civic league or organization, (2) not organized for_ profit, and (3) that it was operated exclusively for the promotion of social welfare. Whether or not the Tax Court found in its favor as to (1) above, it seems to me clear that we cannot hold that that court was compelled on the evidence to find in its favor as to (2) and (3) and, consequently, committed legal reversible error when it failed to find both (2) and (3). Its failure amounted to saying that upon weighing- all the evidence on the subjects it found that it did not preponderate in favor of the petitioner on either point. The following extract from the opinion is illuminating. “So far as appears, the income is devoted to the maintenance and improvement of the broadcasting facilities and the enlargement of the sale of its commercial time, and as a result these are improving and growing. It would not be correct to say that the station is operated principally for social welfare and only incidentally as a small business for the support of its welfare activities. One-third in 1935 and probably more now of its allotted time is devoted to its operation as a purely commercial station for a substantial income arid the destination and use of that income is not only in support of its welfare function but also in support of its commercial function.”
That the finding of the Tax Court to the above effect does have the support of substantial evidence appears to be clear enough. Consequently, there was evidence legally sufficient for administrative action. We may not go beyond a determination of *953that and weigh the evidence as a whole. Webre Steib Co. v. Commissioner, 65 S.Ct. 578; Dobson v. Commissioner of Internal Revenue, 320 U.S. 489, 64 S.Ct. 239, 88 L.Ed. 248.
I think the decision should be affirmed.