OPINION.
Murdock, Judge:The Commissioner determined a deficiency in excess profits tax of this petitioner for. the short taxable period from January 1 to June 30,1941. The petition was filed in accordance with law after the receipt of the statutory notice of the determination of that deficiency. Secs. 272 (a) (1) and 729. The Commissioner now concedes that there is no deficiency. The only issue for decision is whether the petitioner has made an overpayment of $13,921.24 of its excess profits taxes for the period here in question and is entitled to a refund of that amount. The jurisdiction of the Tax Court to consider and decide that issue is not doubted by either party and there is no reason to question that jurisdiction. Sec. 322 (d).
The petitioner contends that it has made an overpayment and is entitled to a refund of $13,921.24, since its tax should be computed under section 711 (a) (3) (B). The respondent concedes that the payments already made exceed the petitioner’s excess profits tax liability by $13,921.24 if the excess profits tax liability is to be computed under section 711 (a) (3) (B). The Commissioner contends, however, that the petitioner is not entitled to have its taxes computed under section 711 (a) (3) (B) and, in any event, is not entitled to have any portion of its payments refunded, since it did not make application to have its taxes computed under section 711 (a) (3) (B) on or before June 15,1943. See Eegulations 109, sec. 30.711 (a) -4 (d). The facts have been stipulated or admitted and are not in dispute.
The petitioner was a New Jersey corporation, with offices in Pittsburgh, Pennsylvania. It ceased to do business as of June 30, 1941, when it was merged with a Delaware corporation of the same name. The petitioner’s excess profits tax return for the period of six months ended June 30, 1941, was filed on March 14, 1942, with the collector of internal revenue for the twenty-third district of Pennsylvania.
Section 711 (a) (3) (B) was added to the Internal Eevenue Code by section 213 of the Eevenue Act of 1942, approved October 21,1942. It was made retroactive to taxable years of less than twelve months beginning after December 31, 1939. The general rule applicable to such periods is contained in section 711 (a) (3) (A). (B) provided an exception which would benefit the petitioner, as the parties have agreed, if it is entitled to have that paragraph applied. (B) contains the following sentences:
The benefits of this. subparagraph shall not be allowed unless the taxpayer, at such time as regulations prescribed hereunder require, makes application therefor in accordance with such regulations, and such application, in case the return was filed without regard to this subparagraph, shall be considered a claim for credit or refund. . The Commissioner, with the approval of the Secretary, shall prescribe such regulations as he may deem necessary for the application of this subparagraph.
The Commissioner, acting pursuant to the authority contained in (B), promulgated section 30.711 (a)-4 (d) of Eegulations 109 through the medium of T. D. 5253, approved March 27, 1943, and filed with the division of the Federal Register on March 30, 1943. That new regulation contained the following provision:
The claim shall set forth the computation of the adjusted excess profits net income and the tax thereon for the 12-month period, and must be filed not later than June 15, 1943, or the time prescribed for filing the return for the first taxable year ending with or after the twelfth month after the beginning of the short taxable year, whichever date is later.
The facts in this case are such that the taxpayer was required by that regulation to file its application for the benefit of section 711 (a) (3) (B) not later than June 15, 1943. Cases cited by the petitioner not involving refunds are not in point. The original return of the petitioner was filed before (B) was enacted and no application for the benefits of that provision was made by or on behalf of the petitioner prior to September 4, 1945, at which time a protest was filed containing an application for the benefits of section 711 (a) (3) (B). That was more than two years and two months after the last day for making such an application, as fixed in the regulations. It was also more than two years and five months after the regulation was approved and published, and more than two years and ten months after the law was approved.
The petitioner first contends that it is entitled to the refund because its claim was timely under section 322 (b) (3) and it is not limited by the provision of Regulations 109, section 30.711 (a)-4 (d). Section 322 (b) (3) provides that the period within which a claim for credit or refund may be filed shall be six months longer than the period within which the Commissioner might make an assessment pursuant to any timely agreement between the parties extending the time for assessment. The taxpayer and the Commissioner entered into a timely agreement extending the time for assessment of excess profits taxes for the period here in controversy to include June 30, 1946. The protest claiming the benefits of section 711 (a) (3) (B) was filed on September 4, 1945, and a claim for refund on Form 843 was filed by the successor company on June 10, 1946. The Commissioner correctly argues, however, that the provision of section 711 (a) (3) (B) (implemented by Regulations 109, sec. 30.711 (a)^4 (d), having the force and effect of law, Maryland Casualty Co. v. United States, 251 U. S. 342), being a special provision of limitation applicable to refunds of excess profits taxes for a short taxable period such as the one involved herein, takes precedence over the general provision of section 322 (b) (3). Ginsberg & Sons v. Popkin, 285 U. S. 204; Cohen Trust v. Commissioner, 121 Fed. (2d) 689.
The petitioner argues in the alternative that the regulation relied upon by the Commissioner was unreasonable in allowing only two and one-half months after its promulgation for the filing of an application involving a credit or refund and, therefore, was invalid. The petitioner points out that the regulation as amended by T. D. 5272, approved June 14, 1943, C. B. 1943, p. 690, allowed a much longer time in all other cases, as, for example, where the application would result only in the reduction of a deficiency not yet paid or in taxes assessed but not yet paid. The petitioner cites cases for the general proposition that an unreasonable regulation is invalid, but none relating to the period fixed by a regulation for the performance of some act. No case on that precise point has come to our attention.
The statute here in question expressly provided that a regulation be drafted to supply the necessary administrative details. The regulation in question was approved and promulgated pursuant to that authority. It has been suggested that a regulation expressly required by statute to supplement the provisions of the law will be adhered to unless clearly arbitrary. Mertons, Law of Federal Income Taxation, vol. 9, sec. 49.188, pp. 176, 177. Cf. Eastman Kodak Co. v. United States, 48 Fed. Supp. 357; Helvering v. Wilshire Oil Co., 308 U. S. 90. The petitioner would have us conclude that this regulation was unreasonable or arbitrary merely because it sets June 15, 1943, as the last date upon which application could be made for the benefits of section 711 (a) (3) (B) if the benefits were to be realized through a refund or credit.
If the Commissioner had set a limitation which was obviously impossible to meet, then his action might be said to be unreasonable or arbitrary and the regulation invalid. But the date of June 15, 1943, set by the regulation involved herein, was over seven months after the law was approved and two and one-half months after the regulation was first promulgated. The period thus set was not obviously impossible to meet, unreasonably short, or arbitrary. Two and one-half months is the same period which Congress itself set for the filing of returns after the close of each taxable period. The petitioner and others could have been anticipating some regulation from the time the law went into effect. The petitioner did nothing to claim the benefits of this new provision until September 1945, and it has given no reason for its failure to act sooner. Apparently, it has gotten itself .into its present position by its own inaction rather than through the unreasonableness of the regulation. The circumstances of this case do not justify a holding that this regulation was invalid. Cf. Helvering v. Wilshire Oil Co., supra. It follows that this Court can go no further than to hold, as the parties have agreed, that there is no deficiency.
Beviewed by the Court.
Decision of no deficiency will be entered.