I can not agree with the opinion or the decision in this case. The decision as indicated in the opinion is based on section 3176 of the Revised Statutes. I am of the opinion that section 3176 has no application whatever to the matter of an election as to how a conjugal couple shall make their income-tax return. It only provides that, in the event no return be filed by the taxpayer, the Commissioner may, with such information as he may be able to obtain, make and subscribe a return for and on account of the taxpayer, and that such return so made shall be prima facie good for all legal purposes.
In the absence of protest sustained, that return in law is sufficient to base an assessment upon, and enforce collection. But in the event of a protest on the part of the taxpayer, I know of no decision of any court or of this Board, prior to the one now being considered, that can be construed to hold that the return made by the Commissioner is binding on the taxpayer on any phase of such return.
The stipulations of the statute relied upon specify that such return shall be prima facie good. Every lawyer knows and will concede that a prima facie case is always subject to attack and overthrow.
Suppose the Commissioner, for any reason whatsoever, had computed a net income of $20,000. Would it be contended that the return in that respect is not subject to attack and correction? Would it operate as an estoppel on the part of the taxpayer? I can not conceive of any law or reason that should hold the taxpayer irretrievably bound to the issue of an election, any stronger than he is bound by such return on any other item in it. That the taxpayer in the instant case was entitled to an election in 1923 and 1924 is conceded.
I believe it is uniformly held that the right of election is not waived by laches or otherwise. Where the right exists it remains unimpaired until it is exercised by some overt act. When once-exercised by him it is then, under most circumstances, irrevocable.
*469“ The doctrine of election of remedies is generally regarded as being an application of the law of estoppel.” (9 R. C. L. 957.) It is evident that the law of estoppel referred to here is an estoppel by deed or record, for there is no element of “ equitable estoppel ” in the doctrine of election.
Quoting further from Ruling Case Law, it is said: “An estoppel may be said to arise when a person executes some deed, or is concerned in or does some act, either of record or in pais which will preclude him from averring any thing to the contrary.” Or as Lord Coke defines it: “ It is called an estoppel or conclusion, because a man’s own act or acceptance stoppeth or closeth up him mouth to allege or plead the truth.” (10 R. C. L. 675.)
It will be noted that to be estopped, one must, himself, be the author of the deed or act. No one, in the absence of specific authority from him may estop him. Certainly his antagonist may not estop him. No one, save the person in whom the right of election exists, can make an election for such an one. Certainly his antagonist can not bind him by making the election for him.
Assuming that petitioner had the inherent legal right of election in 1923 and 1924 to make separate returns for the community income of himself and his wife, that right remains unimpaired until he makes such election, and as I understand the law applicable to the case, that election can not be exercised for him by an enforced proxy — his antagonist in this tax matter.
By reason of the fact that the petitioner did not exercise his right of election in 1923 or 1924, and by reason of the fact that section 1212 of the Revenue Act of 1926 does not apply later than for the year 1926, a question has been raised as to whether or not petitioner may now elect to make separate return for the years 1923 and 1924. That question involves the inherent right of conjugal couples under the Texas community property laws to make separate returns on their community income.
It is not my desire to discuss here that question, in view of the grounds upon which the decision in the prevailing opinion is reached. My contention here is that in the event it be held that petitioner has an inherent legal right to make separate return if he so elects, then that right remains unimpaired. To render a decision against him on the ground that the Commissioner (his antagonist in this tax matter) made an election for him, I believe is contrary to the law of the case.
He is entitled to have his case decided on its merits — that is, whether or not he has a right to make separate return of his part of the community income for years subsequent to 1926 as well as *470prior thereto, regardless of whether he files such return in due time or is delinquent.
It may be conceded here that in event it be decided that he has not the right to file separate return for years subsequent to 1926, then he now has not the right to elect to have his return made separate from his wife’s return for the years 1923 and 1924. But if it be decided that under the Texas laws, viewed in connection with the Federal income-tax acts, he has such right, then my contention is that, having never exercised his election to make joint return, he still has that right of election unimpaired, and in that event the decision here should be for him instead of against him.