DISSENTING OPINION ON SUGGESTION OF ERROR. It being conceded that an excess profits tax is computed upon income and is therefore reasonably comprehended within the inclusive generality of income taxes, the narrow question is whether the term as a technical concept should receive a construction favorable to the state or to the taxpayer. It was not contemplated by the legislature that it would mean more than the term implied when the act was passed, at which time there was no excess profits tax properly so called in force. Even the view that the term may be held to assemble to itself all subsequent exactions susceptible of computation on an income basis, returns us again to the question of a proper criterion of construction.
Assuming that deductions, if ambiguous, are to be construed favorably to the state, we find that the deduction is "all taxes." There is no ambiguity here. The exception of "income taxes" is calculated to transpose the term from its place in the deductions and to expose it to the direct impact of the tax. Borrowing the construction devise of the majority opinion, it seems that the effect of the statute is to say to the taxpayer, you must pay on all income including that which was used to pay income taxes, but all other taxes may be deducted.
Income taxes therefore fall not within the deduction but within the imposition.
I am authorized by Judge ROBERDS to say that he concurs in the views herein expressed. *Page 50