DISSENTING OPINION. The Federal tax, which the appellant says is not an income tax, and therefore should here be deducted from its income, is imposed by the Second Revenue Act of 1940, 26 U.S.C.A., Int. Rev. Acts, an examination of which seems to me clearly to disclose that it is an income tax. Title (1) of that statute imposes a tax "upon the normal-tax net income of every corporation the normal-tax net income of which is more than $25,000;" with some exceptions. Title (2) thereof imposes an additional tax on the same income of a corporation in the following words: "There shall be levied, collected, and paid, for each taxable year beginning after December 31, 1939, on the adjusted excess profits net income, as defined in subsection (b) of every corporation," with certain designated exceptions. The statute then proceeds to grade the tax according to the amount of a corporation's "adjusted excess profits net income."
Subsection (b) of the section of the statute imposing the tax is as follows: "Definition of Adjusted Excess Profits Net Income. — As used in this section, the term, `adjusted excess profits net income' in the case of any taxable year means the excess profits net income (as *Page 46 defined in section 711) minus the sum of," etc. The section 711 referred to is quite lengthy. Paragraph (a) thereof is as follows: "The excess profits net income for any taxable year beginning after December 31, 1939, shall be the normal-tax net income, as defined in section 13(a) (2), for such year except that the following adjustments shall be made."
Throughout the statute the words "excess profits net income" are used when referring to the tax imposed. Nowhere in the body of the statute is the tax imposed by it referred to simply as an "excess profits tax." Those words, without more, are used only in the first paragraph of title (2) thereof, wherein permission is given to cite the tax as the "excess profits tax of 1940." This permission was given merely for convenience in citing the statute, and cannot of itself determine the nature and character of the tax imposed. On the face of the statute imposing it, to which alone we should look, the tax here under consideration is an income tax, and I know of no rule of construction that would require, or even permit, us to hold otherwise.
The decree of the court below should be affirmed.
I am requested by Judge ANDERSON to say that he concurs in this dissenting opinion.