
    Appeal of RICHARDS & BRENNAN CO.
    Docket No. 36.
    Submitted March 25, 1925;
    decided April 8, 1925.
    
      Henry H. Bond, Esq., for the taxpayer.
    
      A. Galder Maehay, Esq., for the Commissioner.
    Before GeatifneR, Lansdon, and Littleton.
    The above entitled appeal came on for hearing before the Board upon the issues appearing in the pleadings.
    Previous to the hearing, and on application of the taxpayer, a subpoena was issued by the Board calling upon the Commissioner of Internal Revenue to produce the following documents:
    (1) The return of the taxpayer for the fiscal years ending November 30, 1919, and November 30, 1920, and all correspondence, Revenue Agents reports, memoranda and other papers relating in any way to the assessment of said taxes for said years.
    (2) The so-called comparative data sheets prepared either in the Special Assessment Section of the Income Tax Unit, or in the Review Division of the Solicitor’s office upon the basis of which the Unit denied the taxpayer’s application for assessment under the so-called relief sections, together with all other papers relating to said denial, including list of comparatives used and requests of the Statistical Division or other branches of the Unit for names of comparatives to be used.
    (3) The returns for said years or for their corresponding fiscal or calendar years, of any other corporations not used as comparatives in the said comparative data sheet, and which corporations were considered as possible comparatives in reaching a decision upon the taxpayer’s case, together with all other papers relating to their taxes and showing the amounts which said corporations paid for said fiscal years or for the calendar years most nearly approaching the fiscal year of this taxpayer.
    (4) The comparative data sheets, so-called, which have been prepared and used in other applications of taxpayer for assessment under the Relief Sections in the cases of taxpayers who were shoe manufacturers and whose application for such special assessment was allowed and the tax reduced accordingly, together with all other papers relating to such favorable action by the Unit on their applications.
    Upon the appeal being called for hearing, the taxpayer requested information as to which of the documents called for in the subpoena had been produced before the Board. In response to the inquiry of the taxpayer, the counsel for the Commissioner stated that he had not produced, and the Commissioner refused to produce, the comparative data sheets and the returns called for in paragraphs 2, 3, and 4, hereinabove set forth. This refusal was made upon the ground that the production of such returns, or any information relating to such returns, was prohibited by section 3167, U. S. Revised Statutes.
    Upon the refusal of the Commissioner to produce the above-mentioned comparative data sheets and returns, the taxpayer moved to continue the hearing of the appeal on the ground that it could not proceed with the proof necessary to establish its rights without the production of said data sheets and returns. Whereupon, counsel for the Commissioner moved to dismiss the appeal upon the ground of failure of the taxpayer to prosecute.
   DECISION.

The motion of the taxpayer for a continuance and the motion of the Commissioner to dismiss are hereby denied.

The deficiency determined by the Commissioner is approved upon the ground that the taxpayer has not proven that it comes within the provisions of section 327 of the Revenue Act of 1918. It therefore has not proven that it is entitled to the special assessment provided for in section 328.  