concurring: The Commissioner determined a deficiency in income tax in this case and as a result the Tax Court has jurisdiction to determine a like deficiency, a lesser deficiency, no deficiency, or an overpayment in income tax for 1942 resulting from any error in the computation of the deficiency in income tax determined by the Commissioner.
The Commissioner also disallowed in part the application of the petitioner for relief under section 722, allowed such relief in part, and stated the amount of a resulting overassessment in excess profits tax for 1942. The Tax Court as a result of that determination by the Commissioner has jurisdiction to consider whether the petitioner is entitled to any additional relief under section 722 and, if so, to determine the amount of relief to which the petitioner is entitled.
The above states the complete extent of the Tax Court’s jurisdiction in this case, and it has no further jurisdiction in this case.
The petitioner does not claim that the amount of the deficiency in income tax determined by the Commissioner is excessive but wants to have the Court determine a greater deficiency in income tax based upon the allowance of a claimed overpayment of excess profits tax. The Commissioner has not asked for an increased deficiency in income tax. See sec. 272(e). The Tax Court will not decide such a question and increase the deficiency in the absence of any claim therefor by the Commissioner. Furthermore, the Tax Court has no authority to make such mutually dependent adjustments in the absence of properly raised issues and proper jurisdiction.
The only real issue which the petitioner seeks to have this Court decide in this case relates to the petitioner’s excess profits tax liability for 1942. The claimed refund of excess profits tax is based upon an increase in invested capital. The parties apparently agree that the petitioner is entitled to this increase in invested capital, but the Commissioner refuses to recognize any overpayment because the petitioner has not made a timely claim for refund of any such amount. The petitioner wants the Tax Court to decide that it filed a timely claim and wants the Tax Court to enter a decision that there is this additional overpayment in excess profits tax for 1942. The increase in invested capital is wholly unrelated to the question of any additional relief under section 722. The Tax Court, under such a determination, has no jurisdiction to consider an issue of whether a timely claim for refund based upon the increase in invested capital was filed. Jurisdiction here is contrary to our opinion in Mutual Lumber Co., 16 T.C. 370.
Actually, the facts in this case present the basis for a suit for refund, but the Tax Court has no jurisdiction in a suit for refund except that it can find an overpayment if a proceeding is initiated on a determination by the Commissioner of a deficiency in that tax. Sec. 0512(b), I.R.C. 1954.