concurring: There has long been a provision in each of the revenue acts under the heading “Partnership not Taxable,” section 181 of the Revenue Act of 1936, and of the Internal Revenue Code. The income from a business carried on in partnership is taxable to the individuals conducting the business. The partnership is required to make an income tax return. Sec. 187. The tax is assessed against the individual members of the partnership. That which is stated in the majortiy opinion constitutes a review of established principles and procedures.
Under section 503 of the Revenue Act of 1936, “Administrative Provisions,” the filing of a return of tax on unjust enrichment by a partnership would appear to be controlled by section 187. Form 945, as has been pointed out in the majority opinion, contains instructions for the filing of that form, and there is a particular reference to “Partnership” and to section 181 of the Revenue Act of 1936. Thus, for the taxable year involved, Form 945 contained an administrative direction to guide those carrying on a business in partnership, and the direction stated that:
The partnership should make a return of information on this form showing the income under item 4, page 1 of the return, and attach a schedule showing the distributable share of each partner. Each partner should make a return on this form, in which is reported his distributable share of the partnership net income and the computation of the tax thereon.
The above quotation from Form 945 is not referred to in the respondent’s brief in this proceeding, nor does he give any explanation for his position in this proceeding which is at variance with the instructions given for the guidance of partnerships in filling out Form 945 which were in effect in the taxable year. This leads the majority to observe that “the respondent apparently has altered his original position.” However, respondent fails to give any explanation for his apparent change in his procedure.
I believe that it was not intended, in the course of the Commissioner’s administrative audit of the items involved in this proceeding, that the determination which was made relating to this petitioner would or should be considered apart from two other determinations relating to the individual partners’ liability for the tax. There are circumstances present here which suggest that this cause comes before us now for redetermination as the last step in a series of errors. If that is so, one may be inclined to believe that respondent found himself in a position in this proceeding of having to stand his ground for special reasons, and, perhaps, respondent, in his general administrative procedures, has not departed from the views expressed by the directions set forth in Form 945.
Respondent sent a notice of deficiency in unjust enrichment tax liability to each of the partners of Lantz Bros., H. W. and J. A. Lantz, in which it is stated, “The net income of the partnership is treated as taxable to the individual members of the partnership in accordance with sections 181 and 182 of the Revenue Act of 1936, and the instructions appearing on page 10 of Form 945, relative to partnerships.” H. W. Lantz and J. A. Lantz filed petitions with this Court for redeter-mination of the deficiencies determined against them. Thereafter, all three petitions, including the one filed by this petitioner, were placed upon the same circuit calendar for trial. When the three cases were called, the petitioners were not ready to proceed and dismissal for failure to prosecute was ordered, but a problem then arose about duplication of the same deficiencies against the two individuals, the members of the partnership. Respondent withdrew the determinations of deficiencies against H. W. and J. A. Lantz, and moved for judgment as to the liability of the partnership, Lantz Bros., this petitioner. An order of decision was entered in this proceeding which determined that there was a deficiency owing by petitioner in the amount of $1,513.29. Petitioner took an appeal to the Circuit Court of Appeals for the Sixth Circuit, which vacated this Court’s order in this cause and remanded this cause for a hearing on the merits. Lantz Bros. v. Commissioner, 139 Fed. (2d) 192. Accordingly, this cause came on for hearing on the merits, but the companion cases of H. W. and J. A. Lantz could not be considered. They had been settled, apparently, by respondent’s action in his withdrawal of his determinations. This Court had entered an order of dismissal and of no deficiency in each of those two proceedings, and appeals were not taken from those orders. The orders of this Court in those cases, of course, were not vacated.
Under these circumstances, the cases of the individual members of the partnership, Lantz Bros., do not come before us for consideration along with this proceeding, and respondent is put in the position of being unable to argue in his brief in this proceeding the alternative question which is inherent, namely, whether H. W. and J. A. Lantz are liable, individually, for the deficiency in unjust enrichment tax, which tax falls upon the income which -was earned by the business which they carried on in partnei’sliip. Indeed, it must be said that respondent’s brief presents a very weak argument, directed, as it must be, only to the question which originated out of one of the three related determinations as set forth in the three notices of deficiency, which were issued simultaneously.
I concur with the majority, and give the background of this proceeding for whatever light it may throw7 upon the controversy. I am of the opinion that wre are called upon to restate vTell established principles of tax law' because of a series of missteps, rather than because respondent has changed his views in the matter of the liability of the individual members of the partnership for the unjust enrichment tax.
Smith, J., agrees with the above.