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limiting provisions of section 24(a)(5).”7 Pozzo di Borgo v.
Commissioner, 23 T.C. at 78. (Emphasis added.) The taxpayer
failed to establish the factual underpinnings for her contention
that some or all of the remaining 36.5136 percent of her
commission payments were not allocable to income or interest
wholly exempt from tax, and so we held for the Commissioner. Id.
at 78, 81.8
Thus, the cases that respondent cites to us do not provide
any instructions relevant to the instant case. Respondent has
not suggested that the instant case involves any other
consideration, such as capital expenditures, or exempt income,
that might require apportionment, and our Findings of Fact
dispose of these theoretical possibilities.
7 Sec. 24(a)(5), I.R.C. 1939, is the predecessor of sec.
265(a)(1) of present law, relating to disallowance of deductions
for expenses allocable to income or interest wholly exempt from
income taxes.
8 We noted that the taxpayer’s contention as to the commission
payments, if proven, would transform that case into an
overpayment–-or refund-–case. See Pozzo di Borgo v.
Commissioner, 23 T.C. 76 (1954). For a discussion of the
differences between a taxpayer’s burden in a refund case and that
taxpayer’s burden in a deficiency case, see Helvering v. Taylor,
293 U.S. 507, 514-516 (1935), affg. Taylor v. Commissioner, 70
F.2d 619, 620-621 (2d Cir. 1934).
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