dissenting: I am unable to agree with the conclusion reached in the majority opinion wherein it holds that petitioner, in computing unused excess profits credits for 1941 and 1942 to be carried forward and used in computing its 1943 excess profits tax, is entitled to reconstruct excess profits credits for 1941 and 1942 by using its predecessor’s basis as provided in section 121, Revenue Act of 1943. Section 121 of the Revenue Act of 1943 relates generally to the “Reorganization of Certain Insolvent Corporations” and contains numerous provisions.
The majority opinion states respondent’s position, in part, as follows:
The petitioner may not, the respondent argues, construct hypothetical unused excess profits credits for 1941 and 1942 to use in 1943, but says that the statutory scheme was to give the taxpayer benefit, by way of a carry-over, of that credit which was actually available to it in the earlier year.
I agree with respondent. Where does the petitioner get the right to use in 1943 unused excess profits credit carry-overs from 1941 and 1942? It gets it from section 710 (c) of the Internal Revenue Code. The pertinent part of section 710 (c) (2) of the code with which we are here concerned reads:
(2) Definition ox unused excess pbofits cbedit. — The term “unused excess profits credit” means the excess, if any, of the excess profits credit for any taxable year beginning after December 31, 1939, over the excess profits net income for such taxable year, computed on the basis of the excess profits credit applicable to such taxable year. * * * [italics supplied.]
It seems to me that what petitioner wants to do in the instant case is to recompute its excess profits credit on a basis which was not applicable 'when it filed its excess profits tax returns for 1941 and 1942 and relies upon section 121 of the Revenue Act of 1943 as justification for this action. The majority opinion approves. I do not think the enactment of section 121 had any such purpose in mind, nor do I think it has that effect. As I have already stated, section 121 of the Revenue Act of 1948 relates generally to the reorganization of certain insolvent corporations. The Senate Finance Committee Report, No. 627, Dec. 22, 1943, to accompany H. R. 3687, says of this section (then section 115, later section 121 in the conference report), among other things, as follows:
This section, for which there is no corresponding section in the House bill, amends existing law to provide equality of tax treatment for all corporations undergoing insolvency reorganization under court supervision. The tax treatment provided includes the rules with respect to gain or loss and basis of assets which shall be used both for the determination of depreciation and gain or loss on subsequent sale, and for the determination of credit for excess profits taw purposes. * * * [Italics supplied.]
It is true, of course, that under section 121 the petitioner has a right to use its predecessor’s basis in determining its excess profits credit for 1943. That was one of its purposes. The Commissioner does not dispute that fact and has, as I understand it, computed petitioner’s excess profits credit for 1943 by the allowance of its predecessor’s basis. But he does dispute the right of petitioner to compute a hypothetical excess profits credit carry-over for each of the years 1941 and 1942 and substitute this hypothetical carry-over for the actual carry-over which petitioner did have in those years and bring forward this hypothetical excess profits carry-over and use it as a credit in 1943. I do not think the provisions contained in section 121 (e) of the 1943 Act making changes in basis “applicable to taxable years beginning after December 31, 1933,” warrant any such result.
I think the provisions upon which the majority opinion relies in support of its conclusion reached were intended, as the Senate Finance Committee Report says: “The tax treatment provided includes the rules with respect to gain or loss and basis of assets which shall be used both for the determination of depreciation and gain or loss on subsequent sale, and for the determination of credit or excess profits tax purposes.” The provisions in question mean, I think, that, regardless of when the property was acquired from a predecessor, if it was acquired subsequent to 1933 the provisions of section 121 apply for the purpose of determining gain or loss on the sale or exchange of such property or for depreciation or for the determination of excess profits tax purposes in years 'begi'rming with January 1,1943.
But as I have already stated, I do not think these provisions have any effect to change the provisions of section 710 (c) (2) which specifically define what shall constitute “unused excess profits credit.” These I think are unaffected by section 121 in so far as years prior to 1948 are concerned. I think the Commissioner’s action in so holding should be approved.
Commissioner v. Moore, Inc., 151 Fed. (2d) 527, affirming 4 T. C. 404, upon which the majority relies, involved an entirely different statute and, for the reasons which I have set forth above, I do not think it is in point here.
Tuknee and Hill, JJ., agree with this dissent.