dissenting: From its inception, the Board of Tax Appeals has acquired jurisdiction upon application of a taxpayer to review a deficiency. I. R. C., sec. 272. The purpose was to avoid requiring payment of exactions which were not authorized by law. The method of reviewing a denial by the Commissioner of relief for abnormalities under section 722 was, at least under the earlier versions of the law, manifestly intended to follow this traditional procedure.
It was recognized, however, that in some cases computation (and payment) 1 of the tax without r vference to the relief provision, as was required by the 1941 and 1942 amendments, would involve situations where the only effective redress might be in connection with a claim for refund. To add jurisdiction to review the Commissioner’s action in such situations, section 782 was enacted.2 Even then, however, “there are some cases in which it would be inequitable to compel the taxpayer to pay the entire amount of such tax * * *. Thus at the time required for payment, an eligible taxpayer need pay only 67 percent of that portion of the tax on which it claims relief * * *. Any determination of tax greater than the total amount paid will produce a deficiency.”3 Section 710, as so amended (Revenue Act of 1942, sec. 222 (b)), clinches this approach by providing:
* * * For the purposes of section 271, if the tax payable is the tax so reduced, the tax so reduced shall be considered the amount shown on the return.
Section 271 is the definition of a deficiency, from a determination of which by the Commissiqner an appeal lies to the Tax Court under section 272.
The only reference in the 1941 and 1942 provisions of section 722 to the Board of Tax Appeals is not an authorization to review a determination of the Commissioner, which was unnecessary in view of section 729, but (sec. 722 (d) (1), (2)) is an authorization to accept and act de novo upon claims for relief which because of the exceptional circumstances described arose in such a way that the taxpayer did not have opportunity to file his claim first with the Commissioner.4
If it were not intended that taxpayers could secure a review in advance of payment of the deficiency, this provision was unnecessary and illogical. Any other conclusion results in the further absurdity that a taxpayer who had not had time to file his claim with the Commissioner could litigate his 722 question along with any deficiency issues before the Board and obtain more adequate relief than a taxpayer who had filed his claim but whose claim had not secured favorable treatment. The latter would have to pay the deficiency, and claim a refund. I am entirely unwilling to ascribe so inconsistent and inequitable a purpose to the legislation. , ;¡ -
The change to the present procedure, reqúiringvthe Commissioner to pass on all claims as a prerequisite to jurisdiction here, has been assumed to be the result of Public Law No. 201, approved December 17, 1943, long after this petition was filed. Uni-Term Stevedoring Co., 3 T. C. 917; Pioneer Parachute Co., 4 T. C. 27. For present purposes I am willing to accept that position, and the conclusions there reached as sound.
It seems to me to follow from what has been said, however, that when this proceeding was commenced, the Tax Court had jurisdiction of it, at least under the law as it stood under the 1941 and 1942 amendments. That is a distinction from the Uni-Term case, as I think the Tax Court recognized in Pioneer Parachute Co.
The latter case seems to me clearly distinguishable because that was not a petition to review a determination of the Commissioner at all, but an attempt to secure relief de novo under the exceptional situation covered in the 1941 and 1942 amendments.5 The opinion there pointed out that by the 1943 amendment Congress recognized “that this Court is not equipped to handle claims for relief administratively,” with a consequent change of—
* * * the statute to its present form by Public Law .201, supra. * * * * * * so that in no case shall the question of possible relief under 722 be tried before thds Court until after the Commissioner has acted adversely upon the claim. [Emphasis added.]
In the present proceeding this taxpayer made its application under section 722 to the Commissioner; it was denied; deficiency notice was issued; the petition claiming relief from both actions was filed here, all at the time that the law permitted such procedure. Unless there are impeccable reasons for assuming that the jurisdiction acquired at that time was withdrawn, I think every consideration of justice and sound administration requires that it be considered as having been retained.
It may well be that the passage of Public Law No. 201 repealed, at least by implication, the provision for direct application to the Tax Court which had previously been incorporated in section 722 (d). But it did not repeal section 729 or section 272, and is silent on the subject of withdrawal of jurisdiction in such a proceeding as this. At most it prescribed a new procedure. Quoting another statement from Corpus Juris:
* * * jurisdiction duly acquired under an existing statute is not taken away by a subsequent statute prescribing a different method of commencing an action. [21 Corp. Jur. Sec., p. 148.]
In the words of Judge Parker in Duke Power Co. v. South Carolina Tax Commission (C. C. A., 4th Cir.), 81 Fed. (2d) 513, 516; certiorari denied, 298 U. S. 669:
* * * a repealing act ought not be construed, if any other construction is possible, as intended to affect rights which have vested under the act repealed or as requiring the abatement of actions instituted for the enforcement of such rights. * * * [Emphasis added.]
I respectfully dissent.
AruNDell, J., agrees with this dissent.This requirement, added by the 1942 Act, seems to have been a mere clarification, for by that act “The administrative procedure presently provided for in section 722 is retained.” H. Rept. No. 2333, 77th Cong., 2d sess., pp. 148, 149.
* “Sec. 9. * • * under existing law, unless a deficiency has been determined by the Commissioner, a taxpayer has no right of appeal to the Board (sec. 272 (a) (1), I. R .C.). Thus, for example, if a refund claim viere filed by a taxpayer and the Commissioner disallowed the claim in whole or in part Sat did not determine [o] deficiency, no right of review of the Commissioner’s action by the Board would be present. Inasmuch as the taxpayer’s right to relief under certain of the relief provisions provided in this bill may only be raised by a claim for refund, it is necessary that a procedure be provided whereby the Board may obtain jurisdiction to review a decision by the Commissioner dis:'lowing such claims. Accordingly, section 732 (added to the Excess Profits Tax Act of 1940 by see. 9 of the bill) provides that the taxpayer may file a petition with the Board of Tax Appeals within 90 days after notice of such disallowance is mailed for redetermination of the excess-profits tax. * * *” S. Rept. No. 75, 77th Cong., 1st sess., pp. 15-16.
[Emphasis added,]
Op. cit.. footnote 1, supra.
“SEC. 722. * * ♦
“(d) Application fok Relief ündee This Section. — The taxpayer shall compute its tax, file its return, and pay its tax under this subchapter without the application of this section, except as provided in section 710 (a) (5). The benefits of this section shall not be allowed unless the taxpayer, not later than six months after the date prescribed by law for the filing of its return, or if the application relates to a taxable year beginning after December 31, 1939, but not beginning after December 31, 1941, within six months after the date of the enactment of the Revenue Act of 1942, makes application therefor in accordance with regulations to be prescribed by the Commissioner with the approval of the Secretary, except that if the Commissioner in the case of any taxpayer with respect to the tax liability of any taxable year—
“(1) issues a preliminary notice proposing a deficiency in the tax imposed by this subchapter such taxpayer may, within ninety days after the date of such notice make such application, or
“(2) mails a notice of deficiency (A) without having previously issued a preliminary notice thereof or (B) within ninety days after the date of such preliminary notice, such taxpayer may claim the benefits of this section in its petition to the Board or in an amended petition in accordance with the rules of the Board.
“If the application is not filed within six months after the date prescribed by law for the filing of the return, or if the application relates to a taxable year beginning after December 31, 1939, but not beginning after December 31, 1941, within six months after the date of the enactment of the Revenue Act of 1942, the operation of this section shall not reduce the tax otherwise determined under this subchapter by an afhount in excess of the amount of the deficiency finally determined under this subchapter without the application of this section. * * *”
See footnote 4, supra.