dissenting: An inferior tribunal need not agree with an appellate court in order to be controlled by its rulings. Whether or not an opinion on review is correct seems to me irrelevant.
This would follow, in my view, whether the case before us were to go to the same or a different circuit. Cf. 8 J. Taxation 228 (1958); 7 J. Taxation 172 (1957); 9 Stanford L. Rev. 827 (1957); 7 Duke L. J. 45 (1957); 70 Harv. L. Rev. 1313 (1957); 57 Col. L. Rev. 717 (1957); 43 A.B.A.J. 945 (1957). And it would be presumptuous to assume that in the light of the unmistakable constitutional requirement of geographical uniformity, a revenue act would expressly or by possible implication require its unequal and discriminatory administration by the Tax Court according to its precise place of enforcement within our national boundaries.1 See Robert M. Dann (dissent), 30 T.C.499,510.
Only where there are conflicting views in the Courts of Appeals do I think the Tax Court, with its nationwide jurisdiction, may be free to choose the rule it will follow. Cf. Arthur L. Lawrence, 27 T.C. 713, revd. (C.A. 9) 258 F. 2d 562. But, here, there is only one appellate court opinion passing upon the present issue. If we follow it and are again reversed, a conflict would arise which presumably the Supreme Court or, if necessary, Congress could resolve. If we are affirmed, no problem will exist. In either event, it seems to me that this proceeding is controlled by Becker v. Commissioner, (C.A. 2) 277 F. 2d 146, whether correct or incorrect, and that that disposes of the question.
Cf., e.g., Poe v. Seaborn, 282 U.S. 101, with Fernandez v. Wiener, 826 U.S. 340.