dissenting: While Congress, in section 403 (c) (6) of the Renegotiation Act, as applicable to the year before us, provided that “No renegotiation * * * shall be commenced by the Secretary more than one year after the close of the fiscal year of the contractor * * *,” it did not spell out in that section what it meant by the commencement of renegotiation. In section 403 (c) (5), however, there is a good indication of what Congress had in mind. That section reads as follows:
(5) Any contractor or subcontractor wbo bolds contracts or subcontracts, to which the provisions of this section are applicable, may file with the Secretaries of all the Departments concerned; statements of actual costs of production and such other financial statements for any prior fiscal year or years of such contractor or subcontractor, in such form and detail, as the Secretaries shall prescribe by joint regulation. Within one year after the filing of such statements, or within such shorter period as may be prescribed by such joint regulation, the Secretary of a Department may give the contractor or subcontractor written notice, in form and manner to be prescribed in such joint regulation, that the Secretary is of the opinion that the profits realized from some or all of such contracts or subcontracts may be excessive, and fixing a date and place for an initial conference to be held within sixty days thereafter. If such notice is not given and renegotiation commenced by the Secretary within such sixty days the contractor or subcontractor shall not thereafter be required to' renegotiate to eliminate excessive profits realized from any such contract or subcontract during such fiscal year or years and any liabilities of the contractor or subcontractor for excessive profits realized during such period shall be thereby discharged. [Italics supplied.]
In that context the tie-in between' “an initial conference” and the commencement of renegotiation' is obvious. Thus, in the “Joint Statement” of March 31,1943, the Departments charged with the administration of the Renegotiation Act announced to the public that they interpreted the statute to mean that “renegotiation commences on the specific date set by the Department conducting renegotiation for the initial renegotiation conference.” In my opinion, that is the proper interpretation of the statute, and the later unpublished amendment of May 27, 1948, which in effect is adopted by the majority, is the erroneous interpretation.
Furthermore, it appears that the Departmental interpretation represented by the amendment of May 27,1943, was itself only temporary. In J. H. Sessions & Son v. Secretary of War, 6 T. C. 1236, which, like this case, involved the calendar year 1942, the respondent relied on still a third and later Departmental interpretation to the effect “that renegotiation commences at the time the machinery of renegotiation is put in motion and an initial contact made with the contractor, either in person or through the mails, for the purpose of obtaining information which is to be used as a basis for the determination of excessive profits.” Even under that interpretation, the instant renegotiation was not timely, because the petitioner received no communication from, and was not contacted by, the renegotiating authorities in 1943. I think the interim unpublished interpretation of May 27, 1943, is entitled to no weight whatever.
The only step relied upon by the respondent is the mailing of the Quartermaster General’s letter of December 31, 1943, which the petitioner did not receive until 1944. The letter is little more than a request for information to be used in determining whether or not to renegotiate. It does not even purport to set a date for a conference. Surely, it was never contemplated that renegotiation should commence any time a Secretary might write a contractor for information. As we said in the Sessions case, “Although Congress did not specify how a renegotiation should commence under the 1942 amendment, nevertheless, it must have intended that a Secretary should, give a contractor some fair, unequivocal, and tmmistahable notice of the Secretary’s intention to commence a renegotiation.” [Italics added.]
Finally, although not controlling in the year before us, I would point out that the letter relied upon would not even be sufficient to constitute the commencement of renegotiation under the act as amended in 1943, which requires that a formal notice setting a time and place for a conference be sent to the contractor by registered mail. See section 403 (c) (1) of the Renegotiation Act, as amended by section 701 (b) of the Revenue Act of 1943. In my opinion it is also insufficient for such purpose under a proper interpretation of the law as applicable to the year 1942, and I therefore dissent.
Van Fossan, <7., agrees with this dissent. •