
    SLACK BROS., Inc., v. COMMISSIONER OF INTERNAL REVENUE.
    No. 10849.
    Circuit Court of Appeals, Fifth Circuit.
    Feb. 15, 1944.
    Rehearing Denied March 13, 1944.
    C. J. Batter, of Washington, D. G., for petitioner.
    F. E. Youngman and Sewall Key, Sp. Assts. to the Atty. Gen., Samuel O. Clark, Jr., Asst. Atty. Gen., and J. P. Wenchel, Chief Counsel, Bureau of Internal Revenue, and Raymond F. Brown and Royal E. Maiden, Jr., Sp. Attys., Bureau of Internal Revenue, all of Washington, D. C., for respondent.
    Before HOLMES, WALLER, and LEE, Circuit Judges.
   HOLMES, Circuit Judge.

This case, involving a claim by a sugar processor in Louisiana for refund of processing taxes paid under the Agricultural Adjustment Act of 1933, 7 U.S.C.A. § 601 et seq., presents the same issues, upon substantially parallel facts, as the case of Caldwell Sugars, Inc., v. Commissioner, 140 F.2d 772.

As in the Caldwell Sugars case, the claimant here failed to prove by affirmative evidence that it bore the burden of the tax, and the presumption arising from the marginal comparison of the tax period with the period before and after the tax was unfavorable to it. Here, too, the evidence indicated that the claimant participated in the general price increase promulgated throughout the sugar industry to cover the amount of the tax, and that it billed the tax as a separate item on several sales. Here, again, the Tax Court, with justification, declined to find that claimant’s attack upon the validity of the base period was effective to rebut the presumption in favor of the Commissioner, and correctly held that claimant’s seasonal operations for 1937 could not be used for purposes of a marginal comparison with the tax period.

Upon the authority of the Caldwell Sugars case, the decision of the Tax Court is affirmed.  