concurring: I am in agreement with the majority’s holding that there was no valid receiver appointed under Florida law at the time the petition was filed in the Tax Court. Since no receiver was properly appointed by the Circuit Court of Dade County, Fla., so as to qualify within the purview of section 6871, it follows that the petitioner had a right to file its petition in this Court and that we have jurisdiction to redetermine the correct amount of the deficiency. See secs. 6213 and 6214, I.R.C. 1954. However, I am concerned .that the majority opinion goes further than is necessary with regard to the effect of the invalidation of the appointment of the receiver by the Florida appellate court. That invalidation occurred in December 1966 and the petition herein was subsequently filed on March 13, 1967. In some cases the receivership proceeding in a State court may be protracted, and it may be years before the court finally determines that such proceeding was invalid. If the petition is filed with this Court while such proceeding is pending, it is not altogether clear as to whether this Court has jurisdiction. I would therefore reserve judgment as to the disposition of such a case.
Once the conclusion is reached that there was no valid receiver, I think: it is unnecessary to decide, as the majority does, whether this is “the kind of receiver” or “receivership proceeding” contemplated by the provisions of section 6871(a) 1 and (b). What particularly concerns me about stating this as an alternative ground is that the majority has, without saying so, overruled the previously Court-reviewed opinion in Financial and Industrial Securities Corp., 27 B.T.A. 989 (1933), where we said at page 993:
There is a plausible suggestion that the juxtaposition in the statute of bankruptcy and receivership indicates an intendment to restrict receiverships to such proceedings as arise from insolvency or a desire to avoid threatened insolvency. But the language which was actually used seems to defy such restriction. The difficulty of expressing a meaning for the term which is narrower than its ostensible breadth and yet broad enough to fulfill such an assumed purpose is itself enough to argue against the restriction. It requires but a cursory examination of the subject of receiverships to realize the multitude of variations in proceedings to which the term may be aptly applied. Congress, with this information readily at hand, may be presumed to have used the broad term deliberately. The intention to restrict the application of the section to particular classes of receivership proceedings, such as those related to insolvency or those resembling bankruptcy or those resulting from adversary proceedings, could have been so much more clearly expressed that we are forced to believe that Congress rejected it. This Board of course has no power to adopt a construction at variance with the meaning which the legislature apparently intended. Bowers v. New York & Albany Lighterage Co., 273 U.S. 346.
See and compare Samuel J. King, 51 T.C. 851, 856 (1969); and Leon I. Boss, 38 T.C. 309 (1962). Under the circumstances I would also reserve judgment on this thorny question for a more appropriate case.
Tietjens, Tannenwald, Simpson, and StekRett, //., agree witb this concurring opinion.SEC. 6871. CLAIMS FOR INCOME, ESTATE, AND GIFT TAXES IN BANKRUPTCY AND RECEIVERSHIP PROCEEDINGS.
(a) Immediate Assessment. — Upon the adjudication of bankruptcy of any taxpayer In any liquidating proceeding, the filing or (where approval is required by the Bankruptcy Act) the approval of a petition of, or the approval of a petition against, any taxpayer in any other bankruptcy proceeding, or the appointment of a receiver for any taxpayer in any receivership proceeding before any court of the United States or of any State or Territory or of the District of Columbia, any deficiency (together with all interest, additional amounts, or additions to the tax provided by law) determined by the Secretary or his delegate in respect of a tax imposed by subtitle A or B upon such taxpayer shall, despite the restrictions imposed by section 6213(a) upon assessments, be immediately assessed if such deficiency has not theretofore been assessed in accordance with law. [Emphasis added.]