dissenting: In my view the findings of fact contained in the majority report have omitted one vital, essential finding of fact in this case, without which there is nothing to support the majority finding of fact that “$70,000 of the net abnormal income of the petitioner for 1940 is attributable to previous taxable years and $150,000 of the net abnormal income of the petitioner for 1941 is attributable to taxable years prior to. 1940.” The omitted vital and essential fact to which I refer is petitioner’s net abnormal income for each of the years 1940 and 1941. The majority nowhere finds what that is.
The provisions of section 721 of the Internal Revenue Code, applicable to a case such as we have here are printed in the margin.1
Respondent in his brief makes what I think is a substantially correct statement of what the law requires when he says:
In order to prevail the petitioner must, therefore, show the following:
1. That it had income which is within the “class” described in section 721 (.a) (2) (C) ; the amount of such income; and that such amount received in the taxable year was more than 125% of the average income of the same class received for the four preceding years and hence was “abnormal income.”
2. That it had “net abnormal income” derived from such “abnormal income.”
3. That some part of the “net abnormal income” is attributable not to the current taxable year, but to prior years.
See W. B. Knight Machinery Co., 6 T. C. 519.
When the majority report makes a finding of how much of petitioner’s net abnormal income in 1940 and 1941 is attributable to prior years without making a finding of what the net abnormal income is, it is “putting the cart before the horse.” In fact if petitioner has failed to offer sufficient evidence to enable us to find what net abnormal income it had in each of the taxable years, it has lost its case. See Eitel-McCuLlough, Inc., 9 T. C. 1132.
In the W. B. Knight Machinery Co. case, among other things, we said:
Therefore, restricting the application of section 721 to the income resulting from the development of the new Knight millers, our task is to determine, first, petitioner’s net abnormal income as that term is defined in section 721 (a) (3). [Emphasis supplied.] '
We then proceeded to find what the taxpayer’s net abnormal income was in that case and the figure we reached was $72,053.61. We then found that of that amount $44,501.76 was due to improved business conditions and that under section 30.721-3 of the regulations none of that amount could be attributed to prior years. This left $27,551.85 of the taxpayer’s net abnormal income which could properly be attributed to the expenditures which the taxpayer made during the period 1936 to 1940 in bringing its machines to commercial production. We then directed the attribution of this $27,551.85 to the respective years in accordance with a formula which we held to be authorized by the Commissioner’s regulations.
I do not wish to be understood as dissenting from the majority opinion that petitioner had net abnormal income in each of the taxable years within the meaning of section 721 of the code. I think it did have, and I think also that the evidence is sufficient to enable us to make a finding in each of the taxable years as to what that net abnormal income is. I think it is also possible for us to make findings of how much of that net abnormal income can not be attributed to prior years under Regulations 109, section 30.721-3, as we did in the Knight Machinery Co. case, supra. The point I make is that without these findings our task has not been completed, and that the findings made are insufficient to authorize a finding of how much is to be attributed to prior years, as is done in the majority opinion.
For this reason, I respectfully record my dissent.
SEC. 721. ABNORMALITIES IN INCOME IN TAXABLE PERIOD.
(a) Definitions. — Por the purposes of this section—
(1) Abnormal income. — The term “abnormal income” means income of any class in-cludible in the gross income of the taxpayer for any taxable year under this subchapter if it is abnormal for the taxpayer to derive income of such class, or, if the taxpayer normally derives income of such class but the amount of such Income of such class includible in the gross income of the taxable year is in excess of 125 per centum of the average amount of the gross income of the same class for the four previous taxable years, or, if the taxpayer was not in existence for four previous taxable years * * *.
(2) Separate classes of income — Each of the following subparagraphs shall be held to describe a separate class of income :
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(C) Income resulting from exploration, discovery, prospecting, research, or development of tangible property, patents, formulae, or processes, or any combination of the foregoing, extending over a period of more than 12 months; or
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All the income which is classifiable in more than one of such subparagraphs shall be classified under the one which the taxpayer irrevocably elects. The classification of income of any class not described in subparagraphs (A) to (E), inclusive, shall be subject to regulations prescribed by the Commissioner with the approval of the Secretary.
(3) Net abnormal income — The term “net abnormal income” means the amount of the abnormal income less, under regulations prescribed by the Commissioner with the approval of the Secretary, (A) 125 per centum of the average amount of the gross income of the same class determined under paragraph (1), and (B) an amount which bears the same ratio to the amount of any direct costs or expenses, deductible in determining the normal-tax net income of the taxable year, through the expenditure of which such abnormal income was in whole or in part derived as the excess of the amount of such abnormal income over 125 per centum of such average amount bears to the amount of such abnormal income.
(b) Amount Attributable to Other Years. — The amount of the net abnormal income that is attributable to any previous or future taxable year or years shall be determined under regulations prescribed by the Commissioner with the approval of the Secretary. * * *