dissenting: In sustaining respondent’s determination, the majority rely primarily on the view that, for the provisions of section 711 (a) (3) (B) to be applicable:
* * * the taxpayer must establish “its adjusted excess profits net income for the period of twelve months,” where such a 12-month period exists from the beginning of the short taxable year.
And, because “there is no such 12-month period in this case,” they conclude that “the available information does not permit the petitioners to comply with the requirements of subdivision (B)” and that the general rule of subsection (A) must therefore be applied.
In my opinion the plain language of subsection (B) not only fails to support this construction, but by implication contradicts it. Petitioners complied with all formal requirements prescribed for the benefits of (B). If it had not distributed substantially all of its assets within 12 months from the beginning of its short period, there would seem to be no doubt of its right to the benefits of (B), even though it had passively held title to the assets for a year after the beginning of the short period without receiving income or incurring expenses. But, because it did make distribution, the latter provisions of (B) direct that “the twelve-month period” be counted backward from the end of the short period instead of forward from its beginning. In either event the adjusted excess profits net income is to be “computed as if such twelve-month period were a taxable year.” Such language negatives the view that it must be a year potentially subject to tax. The section does not even refer to income experience or corporate existence. It does refer to a distribution of assets as an event or circumstance which requires a variation in the method of computation. ■
Congress could have conditioned an application of (B) on a full 12-month period of business operation, income experience or corporate existence, comprising the taxable short period. Perhaps such a limitation would have afforded a sounder or more logically harmonious basis for computation of the short period tax. But, as Congress failed to do so, the defect, if such it be, is not a subject for judicial remedy. The majority seek to buttress their conclusion by reference to legislative history. The quoted excerpts from hearings and committee reports, relating to a different section, lend only inferential and dubious support. But, as subsection (B) in my opinion literally presents no ambiguities, and, if literally applied here, is not “plainly at variance with the policy of the legislation as a whole,” United States v. American Trucking Corporation, 310 U. S. 534, recourse to legislative history for its construction is not warranted, cf. Crossett Western Co., 4 T. C. 783; affd. (C. C. A., 3d Cir.), 155 Fed. (2d) 433; John H. Watson, Jr., 27 B. T. A. 463, and the respondent erred in applying subsection (A).