OPINION.
Milliken :
The respondent erred in his failure to allow petitioner the net loss sustained in 1921, in computing the net income for the year 1922. Appeal of Carroll Chain Co., 1 B. T. A. 38; Appeal of Patapsco Ballast Co., 1 B. T. A. 1081.
The issue relating to the imposition of the 1925 delinquency penalty was raised by the amended answer filed by the respondent, and the burden of proof was on him to support the same. The only facts before us show that the return was filed with the collector of internal revenue on October 10, 1923. The due date for filing the return was March 15, 1923, yet for all we know, there may have been an extension of time granted within which the return was to be filed, and even if no extension was granted the petitioner, the delinquency in filing the return may have been due to reasonable cause. The respondent has not borne the burden of proof and we find no justification for the imposition of the 25 per cent delinquency penalty.
Judgment will he entered on 10 days' notice, under Rule 50.