The appellee sued to recover Gross Income Taxes paid under Acts 1933, ch. 50, as amended by the Acts of 1937, ch. 117, § 64-2601 et seq., Burns' 1933, § 64-2601 et seq., Burns' 1942 (Supp.), § 15981 et seq., Baldwin's 1934, § 15981 et seq., Baldwin's Supp. 1937. The evidence was stipulated and the trial court rendered judgment for the appellee for $5,026.26. The State appealed and assigned error on overruling of its motion for a new trial, in which it was asserted that the judgment was contrary to law.

The question presented is identical with that decided favorably to the contention of the appellants in Department of Treasury ofthe State of Indiana v. Allied Mills, Inc. (1942),220 Ind. 340, 42 N.E.2d 34, affirmed by the Supreme Court of the United States February 15, 1943, 318 U.S. 740, 87 L.Ed. 120, 63 Sup. Ct. 666.

The failure of the appellee to file a brief in support of the judgment in its favor is taken as a confession of error.

Reversed with directions to sustain the appellants' motion for a new trial and to enter judgment that the appellee take nothing.

NOTE. — Reported in 47 N.E.2d 141. *Page 250