dissenting: The decisive question here is the same as that in William F. Knox, 10 T. C. 550. I was not in agreement with the holding in that case and expressed my views in a dissenting opinion.
Both here and in the Know case the majority holds that the Current Tax Payment Act of 1943 requires that that part of section 107 income received in 1943 which is attributable to, although not taxable in, 1942 shall be excluded from taxable income of 1943 and superimposed on the taxable income of 1942 as part of the base for computing the 1942 tax liability. On the aggregate of the 1942 taxable income and such superimposed income of 1943, the majority computes what it terms the tax liability for 1942. This so-called 1942 tax liability is, under the holding of the majority, the amount of 1942 tax which is discharged as of September 1, 1943.
In my view, there is no provision in the Current Tax Payment Act ,which authorizes or justifies such holding. Moreover, the Congress, out of an abundance of precaution against the possibility of such interpretation of the act, provided in subsection 6 (d) (3) of the act that section 107 of the code “shall be applied without regard to subsections” (a) and (b) of the Current Tax Payment Act. But the effect of the majority opinion is that such provision is not binding on this Court and that the language, “shall be applied without regard to,” etc., shall be totally disregarded.
The quoted provision of subsection 6 '.(d) (3) obviously means that section 107 shall be applied as it would be applied if the Current Tax Payment Act had not been enacted. Such application requires that all of section 107 income shall be taxed in the year received and that no part thereof shall be the basis of a tax liability for a prior period to which the underlying services may be attributable.
In the instant case petitioner received in 1943 $27,500 of section 107 income. Of such amount, $8,720.76 was attributable to services rendered in 1942. Under the majority holding this amount of $8,720.76 is excluded from 1943 income and consequently not taxed in 1943. It is added to 1942 income, notwithstanding it was not 1942 income and could under no circumstances be taxed or made the basis of a tax liability in that year. The effect of taking out $8,720.76 of the 1943 section 107 taxable income and adding such amount to the income of 1942 is to increase fictitiously the tax liability for 1942 as a basis' to which to apply the 75 per cent forgiveness feature of the Current Tax Payment Act.
The.amount of tax on the $8,720.76 of section 107 1943 income, if taxed in 1943 as it should have been, is $3,391.85.
Petitioner’s tax liability for 1942 was $1,675.51. Under the Current Tax Payment Act he is entitled to a forgiveness of 75 per cent of this amount, namely, $1,256.63, but the majority holds that the above item of $3,391.85 of the 1943 tax liability shall be transferred to, and become a part of, the 1942 tax liability for the purpose of forgiveness of tax under the Current Tax Payment Act. The 1942 tax liability is thereby fictitiously increased from $1,675.51 to $5,067.36, thus securing to petitioner a forgiveness of tax in the amount of $3,800.52 instead of $1,256.63. The tax forgiveness of $3,800.52 thus granted petitioner is made up of $2,543.89 of his 1943 tax and $1,256.63 of his 1942 tax liability. In my view, petitioner is entitled to forgiveness of tax in the latter amount only.
The forgiveness feature of the Current Tax Payment Act, by the terms of such act, applies only to the tax liability of 1942. The majority holds that it shall apply not only to'the tax liability of 1942 but also under the facts here to a portion of the 1943 tax as well. I do not agree.
Turner and Leech, //., agree with this dissent.