¶2At the date of trial of this proceeding, petitioner failed to appear and his counsel stated that without his testimony no evidence could be introduced in support of the first and second assignments of error. No reason was offered for the nonappearance of petitioner and no motion made for a continuance of the hearing. Concerning the first and second assignments of error, the determination of the respondent is sustained.
¶3We have decided in R. Downes, Jr., v. Commissioner, 5 B. T. A., 1029, that where a man and wife living in Louisiana, filed a joint return and included therein the income of both, they could not subsequently file a return on a separate basis under the community property law. This proceeding falls squarely within that decision.
¶4Judgment will be .entered for the respondent.