
    BATTLE CREEK FOOD CO. v. COMMISSIONER OF INTERNAL REVENUE.
    No. 11006.
    United States Court of Appeals Sixth Circuit.
    April 19, 1950.
    Douglas D. Felix, Miami, Fla., for petitioner.
    Theron L. Caudle, Charles Oliphant, Ellis N. Slack, Robert N. Anderson, and George D. Webster, Washington, D. C., for respondent.
    Before SIMONS, MARTIN and MILLER, Circuit Judges.
   PER CURIAM.

This cause came on to be heard upon the petition of the Battle Creek Food Company for review of the decision of the Tax Court of the United States determining a deficiency in the income tax of petitioner for the fiscal years ending, respectively July 31, 1941, and July 31, 1942, and a small deficiency in the declared value excess-profits tax for the latter fiscal year; and has been considered upon the record, the oral arguments and briefs of attorneys for the respective parties and upon the findings of fact and opinion of the tax court, the primary contention of the taxpayer being that a settlement made by it with another company included back royalties which it was entitled to deduct as expenses;

But it appearing that there was no allocation of the payment under the settlement as'between royalties and the other properties acquired by the taxpayer, and inasmuch as the burden rested upon the taxpayer to show substantial basis upon which an approximate allocation could be appropriately made and that burden not having been carried by the taxpayer;

And it appearing that the findings of fact of the tax court are supported by substantial evidence and are not clearly erroneous, and that the reasoning of the court upon which its decision was based is sound;

The decision of the tax court is affirmed.  