dissenting: I must dissent. Section 169 (c) of the Revenue Act of 1942, as amended by section 509 (a) of the Revenue Act of 1943, applied the new law as to time for filing claims under section 722 (by reference to section 322 (b) (3) and making its provisions effective instead of those of section 322 (b) (1)) to 1941, the year here involved. In short, the new law in section 322 (b) (3) provided that if there was a waiver under section 276 (b), the statutory period for filing claims should be the period of waiver plus six months— instead of two years from the date of payment (so far as here concerned) . The petitioner here filed its claim for relief under section 722 within two years from date of payment and contends that such filing was timely; while the Government contends that the proper period under section 322 (b) was the period of waiver plus six months, which had expired. The majority view sustaining the petitioner’s contention is at least greatly affected, if not controlled, by the idea that the statutes are remedial in nature and should be liberally construed, and that the respondent’s view does not permit such liberal construction. But another taxpayer who had filed his claim, not within two years from date of payment but within six months after the end of the period of waiver, might, with equal logic, contend that it would be illiberal interpretation to say that under the statutes he did not have the period of waiver plus six months for the filing of his claim. Certain it is that the majority opinion lays down the rule as to taxable years beginning prior to January 1, 1942, that the claim could be filed only within two years after the tax was paid (or within three years from the filing of return, not here involved). I see no reason, either in the statute or in the rules of interpretation, to deny retro-activity to the rule allowing the waiver period plus six months for filing the claims under section 722. On the contrary I think the statute and the quotation from Merten’s on Federal Income Taxation, set forth in the majority opinion, indicates sound reason for such retroactivity. First, section 169 (c) of the 1942 Act, as amended, provides in language that there shall be retroactivity if “at some time after * * * the enactment of the Revenue Act of 1943 the Commissioner may assess * * * solely by reason of having made * * * an agreement with the taxpayer pursuant to section 276 (b) * * * to extend * * *” the date for assessment. Here clearly there was a period when the Commissioner could have assessed only by virtue of a waiver under section 276 (b). The majority opinion, indeed, does not seem to deny this, for it is based upon the fact that there was on May 7,1945, an assessment followed by payment thereof on May 9, 1945, and for reasons not very clear to me, but apparently because of the idea that therefore the Commissioner could not again assess, concludes that petitioner’s views should be sustained, although in December 1944 petitioner had executed a waiver under section 276 (b) extending the period of limitation to June 30,1946. It seems to me completely plain that the assessment on May 7, 1945, did not prevent an additional assessment up to June 30,1946, and that, therefore, there was a period May 15, 1945, to June 30, 1946, when the Commissioner could have assessed, but solely because of the waiver and hence the statute section 169 (c), as amended, is satisfied and retro-activity of the waiver plus a six-month period is called for.
Indeed, the majority opinion itself discloses, in the quotation from Merten’s Federal Income Taxation, 1948 Supp. § 58.31, the objective of the amending statute and the reason for retroactivity thereof; for it points out that theretofore there had been irritation among taxpayers because the Commissioner, after execution of the waiver, could make additional assessments, after reexamination, but the taxpayer could not, if overpayment was thereby shown, claim refund, so that the 1942 Act provided a claim for refund by the taxpayer during the period of waiver and six months, regardless of other statutes of limitation. It seems to me that Congress did not intend such relief to be limited only to 1942 and later years in the face of the amendment in 1943. A taxpayer, upon reexamination by the respondent during the agreed period of waiver, might find that he had originally paid entirely too much for the year 1941 or some previous year; but under the majority view, if he had so paid more than two years before he appealed for relief (unless claim was within three years from date of return), he would be without remedy, yet if examination showed grounds for assessment the Commissioner could so assess, though without the benefit of section 276 (b) and the waiver thereunder he would not have been able to do so. So it seems to me that a reasonable and liberal construction of these statutes is that, if at any time after the Act of 1943 the Commissioner finds himself able to assess only because he has obtained a waiver under section 276 (b), the taxpayer on his part may ask refund within the time set by section 322 (b) (3), and that the mere fact that there had been a previous assessment, not in reliance upon section 276 (b), is immaterial and outside the objectives of the statute.
Here there was a waiver under section 276 (b) prior to the assessment made. Assuming, as the majority opinion holds, that such assessment was by virtue of section 272 (d) and therefore not prohibited by section 272 (a) (1), nevertheless, there was, thereafter and up to June 30, 1946, “some time” during which the Commissioner might “assess the tax for such taxable year,” i. e., 1941, solely because of the existence of the waiver under 276 (b). The statute is satisfied; liberal interpretation is satisfied when the privilege, in such case, of claiming refund is not limited to two years from date of payment but is, as provided for 1942 and later years, the period of waiver and six months. Reasonable interpretation requires mutuality between the Commissioner and the taxpayer on this matter. Moreover, examination of the Conference Committee Report on the Revenue Act of 1943* (Cumulative Bulletin 1944, p. 1082) with reference to the retroactivity of the amendments of section 169 (c) of the Revenue Act of 1943, after stating that the amendments will not apply to years beginning prior to January 1,1942, unless the Commissioner would be precluded from making assessments but for the agreement, adds:
* * * The amendments will, however, be applicable to all taxable years beginning prior to January 1,1942, if on the date of the enactment of the Kevenue Act of 1943, or on some future date, the Commissioner would be barred from making an assessment with respect to such taxable year but for such an agreement. In such case the amendments will be applicable regardless of whether or not the Commissioner actually does make an assessment * * *. [Italics added.]
I can conceive of nothing more plainly indicative that the assessment actually made by the Commissioner on May 7, 1945, is in the intent of Congress immaterial to the solution of this problem. The majority opinion makes no reference to the committee report, yet the language above quoted therefrom goes to the crux of the majority view, and contradicts it.
I would sustain the respondent’s motion to dismiss because this taxpayer did not take action within the more liberal rule, both specifically and reasonably applied to taxable years both before and after January 1, 1942.
Opper, J., agrees with this dissent.The amendment appears to have been initiated in the conference report.