dissenting: It is at once apparent that situations might arise in which the only procedure open to a taxpayer who had paid his tax “without regard to this subparagraph” (B), and, because of its subsequent passage, had made an overpayment, would be to file a claim for refund, and, upon its rejection, to bring suit. Cf. Internal Revenue Code, sections 3772 and 272; see George H. Fraser, 6 B. T. A. 997, 1001. In such a case it may readily be granted that the statutory provision characterizing the application for relief as a “claim for credit or refund” and the respondent’s short statute of limitations would come into play.
But the present petitioner is here, and the present proceeding is within our jurisdiction at all, not by reason of any overpayment or because or in spite of the existence or nonexistence of a claim for refund, but because respondent has determined against petitioner a deficiency in its tax. If there had been no such determination, we should have no province to enter the controversy, even in the face of an obvious overpayment. Pioneer Parachute Co., 4 T. C. 27. But once the parties are properly before us, as they are here, we are required to dispose not only of the matters raised by the deficiency notice, but of other questions relating to the year and tax in controversy as well, Gutterman, Strauss Co., 1 B. T. A. 243; and, inore especially, if there appears to be an overpayment instead of the originally determined deficiency, to declare its existence and amount. Internal Revenue Code, sec. 322 (d); S. Rept. 558, 73d Cong., 2d sess., p. 44. Except in such unusual instances as processing tax and special relief proceedings under section 722, where our jurisdiction is expressly made to depend upon the denial of a claim for refund, see American Coast Line, Inc., 6 T. C. 67; affd. (C. C. A., 2d Cir.), 159 Fed. (2d) 665, and except where necessary to toll the limitations imposed by section 322 (d), the failure to file a claim for refund is not fatal. Lois E. Scott, 2 T. C. 726. If it need not be done at all, it can scarcely be held to have been done too late.
It may well have been a recognition of this fundamental characteristic of Tax Court proceedings which accounts for respondent’s conclusion that: “An application for the benefit of 711 (a) (3) (B) other than a claim for credit or refund [made in any case in which the tax liability has not been paid] may be filed at any time before the tax liability for the taxable year is finally determined.”1 The bracketed words, while making the provision inapplicable in terms to this proceeding, do not affect the evident distinction drawn by respondent himself between applications for relief which depend for their validity on claims for refund, and others, like the present, which do not.
Applying that distinction to the proceeding before us, it becomes evident that respondent’s determination of a deficiency against this petitioner entitled it to file a petition here; and that the filing of that petition gave this Court jurisdiction. If in some other respect it developed that petitioner’s tax liability on its original return was overstated, there could be a determination here to that effect, see Peerless Woolen Mills, 13 B. T. A. 1119, and, except in the unusual situations previously noted, no consideration whatever would be given to whether or not a claim for refund had been filed. I think we should reach the same conclusion with respect to the present overpayment, and, notwithstanding that any claim for refund may have been ineffectual because in default under the regulations, the conclusion that there was an overpayment, irrespective of any such claim for refund, should be permissible here as in any other proceeding. It would follow that there was an overpayment in petitioner’s excess profits tax of which we might take cognizance under 711 (a) (3) (B).
Once that had been ascertained, it would become evident that the overpayment was made within the time permitted by section 322 (d), as amended, since the petitioner concededly filed consents to the extension of the period for consideration of its relevant tax return and the time specified in those consents has not yet expired. I accordingly dissent.
Harron, and Johnson, JJ., agree with this dissent.‘‘An application for the benefit of section 711 (a) (3) (B), other than a claim for credit or refund, made in any case in which the tax. liability computed under section 711 (a) (3) (A) has not been paid, may be filed at any time before the tax liability for the taxable year is finally determined. Such application does not constitute a claim for credit, refund, or abatement. If credit or refund is sought for taxes paid after such application la filed, a claim therefor on Form 843 should be filed after such payment and within the period prescribed in section 822.” (T, 0. 5272, 1943 C. B. 690 (Juhe 14, 1943).)