
    (November 19, 1947.)
    In the Matter of Ajax Trucking Company, Inc., Petitioner, against Rollin Browne et al., Constituting the Tax Commission of the State of New York, Respondents.
   Review under article 78 of the Civil Practice Act of a final determination of the State Tax Commission made August 16, 1944, which, after application for revision, affirmed certain franchise taxes and penalties theretofore assessed against petitioner under section 184 of the Tax Law. Petitioner, a domestic transportation corporation, failed over a considerable period to report its gross earnings as required by the Tax Law (§ 192, subd. 2), as a basis of taxes thereon imposed by section 184 of the said statute. When it did report at the instance of the Delinquent Division of the Tax Commission, and thereafter during the tax periods in question, it took the position that all of its gross earnings were nontaxable because derived from its business which was interstate in character. The commission thereafter made a field audit and investigation of petitioner’s business and assessed franchise taxes and penalties upon its entire gross earnings for the periods under review. Upon the review of these assessments petitioner produced evidence which disclosed that a part of said earnings was derived from a part of its business which was interstate in character, but its proof failed to discharge its burden of showing the part or amount of the assessed taxes which were erroneous as having been laid upon its earnings thus derived. To be relieved of the taxes complained of, this was its burden, and it did not sustain it “ by showing that something was improperly included, without showing how much.” (People ex rel. Kohlman & Go. v. Law, 239 N. Y. 346, 351.) On the record before us we may not remit because it does not appear that in assessing the taxes in question the commission' proceeded upon a principle or theory fundamentally erroneous. Determination confirmed, with $50 costs and disbursements. Heffernan, Brewster, Foster and Russell, JJ., concur; Hill, P. J., dissents with the following statement: The American Woolen Company account was all interstate commerce and not subject to tax. The amount thereof is ascertainable by a simple computation.  