dissenting: I dissent from the majority in the supplemental opinion in rejecting the Commissioner’s computation under Rule 50 of petitioner’s deficiency for the year 1941 and adopting the computation which has been submitted by petitioner. I think the computation which has been submitted by the Commissioner follows our findings of fact and opinion embodied in our report promulgated September 28, 1948, 11 T. C. 447. I think the computation which has been submitted by petitioner does not follow our findings of fact and opinion, but departs from them in a very important particular that is not permissible under Rule 50.
It was held in Guy C. Myers, supra, under issues which had been submitted to us by the pleadings, that petitioner had rendered personal services for sixty months or more on five contracts, which I shall designate as A, B, C, D, and E, and in 1941 received 75 per cent or more of his compensation which was to come from them. These are the conditions making operative section 107, which provides that “the tax attributable to any part” of such compensation in 1941 “shall not be greater than the aggregate of the taxes attributable to such part if it had been included in the gross income” ratably over the years of performance. Under Rule 50 respondent computed that petitioner would have paid $216,391.79 in taxes over the performance years if the ratable parts of compensation on all five contracts had been added to the incomes reported for those years. Petitioner computed that he would have paid $124,727.84 in taxes over the performance years if the ratable parts of the compensation on just one of the contracts had been added to the incomes reported for those years. Both agreed that the normally computed 1941 tax on all income received in 1941 was $214,088.27. All income, of course, included the compensation on the five contracts and any other income besides.
Petitioner now contends that in a computation under Rule 50, notwithstanding that he raised in his pleadings the section 107 issue as to his compensation received from all five of these contracts and was sustained by us as to all five, he now has the right under a Rule 50 computation to constitute himself as a sort of a “plucking board” and pluck out only one of the contracts and spread the income from it over the prior years and use the income from the other four contracts in the normal manner.
RuIq 50 of the Rules of Practice of this Court provides in substance that computations shall be submitted by the parties “pursuant to the Court’s determination of the issues.” It further provides that:
Any argument under this Rule will be confined strictly to the consideration of the correct computation of the deficiency or overpayment resulting from the report already made, and no argument will be heard upon or consideration given to the issues or matters already disposed of by such report or of any new issues. This Rule is not to be regarded as affording an opportunity for rehearing or reconsideration.
In stating that I disagree with the majority opinion in what is being done here in a computation under Rule 50,1 do not wish to be understood as contending that the petitioner could not in the first instance ask that his compensation from only one of the contracts should be treated under section 107 and that all other compensation should be treated in the normal manner, even though section 107 could be invoked as to some of the rest of it, for example, his compensation from the four contracts which he now seeks to abandon. I think a taxpayer could do that and no one would have any right to complain. In other words, a taxpayer does not have to ask for section 107 relief unless he chooses to do so. But, having assigned error as to the compensation received from all the five contracts and having had his errors sustained in an opinion by our Court, it is my view that petitioner may not under Rule 50 put upon our Court the task of figuring out what sort of a combination of section 107 income taken in connection with his other income and deductions will yield him the lower tax.
It seems to me that, if petitioner has now discovered that his former assignments of error that the compensation from all five of these contracts should be computed according to the provisions of section 107 was ill advised and that he now wishes to amend his pleadings so as to claim the provisions of section 107 only as to the Iowa-Nebraska commission, he would have to ask for a rehearing so as to amend his pleading and reframe the issues. It would he within the sound discretion of this Court to determine as to whether such a rehearing should be granted. But I do not think it is permissible to reach that result in a computation under Eule 50. It seems to me that to do so is a violation of our own Eules of Practice.
Disney, /., agrees with this dissent.