dissenting: The deceptively simple treatment of the second issue compels the expression of some thoughts in disagreement. Even a superficial examination of the authorities said to support that conclusion makes apparent that not one justifies it. On the contrary, even if the novel result now being reached were a desirable one, it would be necessary to overrule other authorities not cited, or apparently misconstrued and ignored. But I must say I am at a loss to see why it would be beneficial either for taxpayers or the revenue to try to reach it.
/.
The cases cited in support of the opinion are, without exception, instances where respondent has taken the initiative in disapproving or attempting to change some part of a taxpayer’s accounting system. As Judge Kalodner aptly says in Commissioner v. O. Liquidating Corporation, 292 F. 2d 225, 230 (C.A. 3, 1961), certiorari denied 368 U.S. 898 (1961):
The rule stated is not applicable here for the simple reason that the Commissioner did not attempt to change taxpayer’s method of accounting and impose adjustments, but, on the contrary, he sought only to prevent a change in the taxpayer’s method of accounting for this item to which he had not first given his consent and to require adherence to the method used for many years prior to 1953. * * *
On review of the record we agree with the Commissioner’s contention that while taxpayer did not change its over-all method of accounting it did change its treatment of a significant item — the insurance dividends which amounted to $114,000 — and that its action constituted a change in the method of accounting within the meaning of the Treasury Regulations. The Tax Court, in our opinion, erred in finding to the contrary.
The true rule is that laid down in Brown v. Helvering, 291 U.S. 193 (1934):
Moreover, the method employed by the taxpayer is never conclusive. If in the opinion of the Commissioner it does not clearly reflect the income, “the computation shall be made upon such basis and in such manner” as will, in his opinion, do so. * * * In assessing the deficiencies, the Commissioner required in effect that the taxpayer continue to follow the method of accounting which had been in use prior to the change made in 1923. To so require was within his administrative discretion.
♦ * * * * * *
The Commissioner was of opinion that the method of accounting consistently applied prior to 1923 accurately reflected the income. He was vested with a wide discretion in deciding whether to permit or to forbid a change. * * * It is not the province of the court to weigh and determine the relative merits of systems of accounting. * * *
See also United States v. Ekberg, 291 F. 2d 913, 925 (C.A. 8, 1961).
II.
But even where respondent has taken the initiative, he has not always been successful. The opinion appears to assume that had he required here the change now approved of, he would necessarily be sustained. That that is extremely doubtful seems to me to follow from such precedents as Pacific Grape Prod. Co. v. Commissioner, 219 F. 2d 862 (C.A. 9, 1955); and also Atlantic Coast Line Railroad Co., 4 T.C. 140, 150 (1944), where respondent’s effort to require a taxpayer to deduct the entire amount of capital stock tax in the year in which it became due was unsuccessful, although we said (p. 151) :
True, there was a technical liability on July 1 of each year for the entire tax. True, an estimate could be, and was in fact, made in advance as to its amount. * * *
III.
For us to reach the present result we must not only apply rigid legal rules to accounting problems — about which, as lawyers, we know little — which require flexibility and sound but not doctrinaire techniques, but we must disregard the respondent’s regulation which was obviously designed to permit precisely what we are saying here is forbidden:
It is recognized, however, that particularly in a going business of any magnitude there are certain overlapping items both of income and deduction, and so long as these overlapping items do not materially distort the income they may be included in the year in which the taxpayer, pursuant to a consistent policy, takes them into his accounts. [Regs. 118, sec. 89.43-2.]
It would seem that such items as vacation pay and State property taxes, both real and personal, are peculiarly included in such “overlapping items.” When an employee’s vacation benefits are earned partly in an earlier year and partly in another, but he does not become eligible to take his vacation until the later year, it is impossible to decree categorically that they are more appropriately charged against the earlier year’s income. See Blough, Practical Applications of Accounting Standards (American Institute of Certified Public Accountants 1957), p. 164.
Similarly, as to State property taxes, for example, in Commissioner v. Schock, Gusmer & Co., 137 F. 2d 750 (C.A. 3, 1943), relied upon in Atlantic Coast Line Railroad Co., supra, the court said (p. 754) :
both of the New Jersey taxes under consideration would in the normal course be treated as part of overhead expense, and, as part of such overhead expense, not for the year in which they were assessed but for the year -for which they were assessed.
IV.
In addition to Commissioner v. O. Liquidating Corporation, supra, a number of other authorities, one as late as last June, are directly contrary to the present conclusion. It is difficult to believe they are being overruled, but they are certainly not distinguishable. In Advertisers Exchange, Inc., 25 T.C. 1086, 1092 (1956), affirmed per curiam 240 F. 2d 958 (C.A. 2, 1957), we said:
Consistency is the key and is required regardless of the method or system of accounting used. * * *
As heretofore noted, the effect of respondent’s determination is to require the continued use of the accounting method consistently employed by petitioner for a number of years. To do so is within the broad administrative discretion accorded respondent under the statute and is not to be disturbed unless an abuse of such discretion is evident. * * *
Nor may petitioner’s action in effecting the change in the manner of treating items of income and expense be denominated as merely a technical correction of prior errors, although its intention was to align more closely its income from contract sales with the expenses incurred in servicing the contracts. This was a substantial change which may have had some adverse effect upon the revenues, thus clearly requiring the Commissioner’s prior consent to the change. * * *
And in Wright Contracting Co., 36 T.C. 620 (1961) (Court reviewed, without dissent), which cites Commissioner v. O. Liquidating Corporation, supra, we said:
net income shall be computed upon the basis of the taxpayer’s annual accounting period “in accordance with the method of accounting regularly employed in keeping the books of such taxpayer” but if that method does not clearly reflect the income then “the computation shall be made in accordance with such method as in the opinion of the Commissioner does clearly reflect the income.” Section 42 provides that all items of gross income shall be included in income under the method of accounting permitted under section 41. The statute invests the Commissioner with broad administrative discretion to determine the question of the method of accounting which does clearly reflect the income, and the well-established rule is that the courts may not overturn the Commissioner’s determination of that question unless the evidence clearly shows an abuse of his discretion. * * *
Section 39.41-2 (e) of Regulations 118, the pertinent portions of which are set out in the margin,2 requires that a taxpayer who changes the method of accounting employed in keeping his books shall, before computing his income upon such new method for purposes of taxation, secure the consent of the Commissioner. * * * The cited, regulation has the purpose of requiring consistency in the method of accounting for tax purposes and the courts have long approved the respondent’s refusal to permit a change in-a taxpayer’s consistently used method of accounting without his prior consent.
The question here is not whether the change would be proper. We may grant the propriety of the change (necessarily requiring considerable adjustments not made by the petitioner) .4 However, this question, in our opinion, would only be pertinent for our consideration here if it were raised before us after a request by petitioner for such change had been refused by the Commissioner. [Footnotes omitted.]
Other precedents supporting the same view are too numerous to list. In Michael Drazen, 34 T.C. 1070, 1076 (1960), their mere citation covers almost a half page. This position is so clearly in accord with the familiar principle that a litigant with the Government must first exhaust his administrative remedies, see e.g., Pioneer Parachute Co., 4 T.C. 27 (1944), that it is difficult to see why the distinction from the cases relied on, where respondent has already taken his final action, is not being recognized here.
F.
The year before ns is 1953. In that year the manner in which the petitioner kept its books, and, in fact, in which it reported its income, was that which we now say it may unilaterally and retroactively change. There is no adequate proof that the procedure consistently employed in the past did not reflect petitioner’s income with sufficient accuracy. And yet it is succeeding in changing its accounting and its reporting without respondent’s consent and diametrically contrary to his determination. This is nowhere permitted by any statutory provision to which reference is made. And it is not accurate to say that the result will not be detrimental to the revenue. If the change is now permitted, as the stipulation is worded there may be some accounting period, either 1952 or 1953, in which petitioner will obtain the benefit of a double deduction.
VI.
The only possible justification for arriving at a disposition of this matter, which is itself undesirable, supported by no relevant authority, and opposed by precedents of persuasive force, is the improvident language of the stipulation. But I cannot believe that respondent intended to stipulate himself out of court, and, in any event, what he agreed to must have been exclusively factual, not legal.
Parties may not stipulate a conclusion of law which it is the province of the Board to decide. Ohio Clover Leaf Dairy Co., 8 B.T.A. 1249; 9 B.T.A. 433; affd. 34 Fed. (2d) 1022; certiorari denied, 280 U.S. 588. [First National Bank of Boston, Administrator, 25 B.T.A. 252, 257 (1932).]
For the stipulation to mean what it is now interpreted to say would require a complete disregard by respondent of his own regulation and make a mockery of bringing such a case as this for decision in this forum.
I would sustain respondent on all three issues.
Testjens and Fay, //., agree with this dissent.