dissenting: I disagree with the conclusion reached in reference to the issue of estoppel.
It is said in Hector v. Mann, 225 Mo. 228; 124 S.W. 1109, cited in the opinion:
* * * There are estoppels and estoppels, and some forms of them are so defined by law writers and jurists as to make one element in the estoppel *1226the knowledge and reliance of one party upon the acts and conduct of the other; for instance, estoppel in pais, arising from misrepresentation by word, act, conduct, or silence. But there are other forms of estoppel in which knowledge of the fact upon the part of the person invoking the estoppel, and reliance upon the fact and a change of situation based upon that reliance, is not an element. It may be that “ estoppel,” speaking with precision, is the wrong designation, and that in. attempting to classify and give names the doctrine we are about to invoke is improperly classified as “ estoppel,” and that it does not come under that head, but springs from election, ratification, affirmance, acquiescence, acceptance of benefits, or what not. It is classed, however, by law writers under the head of “ quasi estoppel.” (Bigelow on Estoppel, 5th Edition, p. 697; 16 Cyc. 787, et seq.). [Italics supplied.]
A brief review of the facts here will disclose that petitioner elected to claim affiliation, procured the benefit thereof, and acted upon that agreed status until a time when it could procure greater benefit by repudiating and denying that status.
In the beginning, April 2, 1918, petitioner wrote to respondent requesting permission to file consolidated returns for itself with the Tidal Oil Co. and nine other corporations named, stating, inter alia, that said corporations were included under article 77 of the regulations relating to affiliated corporations; that their business was closely related; that petitioner owned 85 to 95 percent of the capital stock of the corporations, including the Tidal Oil Co., of which it owned 85 percent (incidentally the stock of the Tidal Oil Co. owned by petitioner was slightly less than stated); and that the separate corporations had been created and maintained for reasons of business convenience.
On April 17,1918, the permission requested was granted in a letter of respondent, and thereafter consolidated returns were accordingly filed by petitioner, the subsidiary companies filing information returns on Form 1122. On or about June 1,1919, petitioner became the owner of all the stock of the Tidal Oil Co. not theretofore owned by it, and continued the owner thereof. Waivers, from time to time, were filed by all the corporations included in the consolidated re-' turns, whereby the time for assessment and determination of their tax liability for 1918 and 1919 was extended to May 31, 1928. On February 8,1928, petitioner filed with the Commissioner a document in which it agreed that the taxes of the affiliated group should be allocated and assessed against it, the Tide Water Oil Co., as the parent corporation. On May 26, 1928, the Commissioner determined the deficiencies against these corporations, including the Tidal Oil Co. for the year 1918 and the first part of 1919, and allocated them to-petitioner as provided in the agreement mentioned, and mailed notice thereof to petitioner. Under the rules of the Bureau of Internal Revenue, which were known to petitioner, and because of petitioner’s agreement, the respondent did not mail notice to the *1227Tidal Oil Co. or the others. Thereafter petitioner filed its petition with the Board of Tax Appeals, and, among other things, alleged: “ The petitioner is now and was, during the periods hereinafter mentioned, affiliated, within the purview of section 240 of the Revenue Act of 1918, with the following corporations,” naming 14 corporations, including the Tidal Oil Co. Among other errors the petitioner alleged that the Commissioner erred in including in income of the Tidal Oil Co., one of its affiliates, $1,025,390.46 and other certain items detailed. From 1918 to 1931 the petitioner and the Commissioner at all times were each of the opinion that petitioner and the Tidal Oil Co. were during 1918 affiliated under the provisions of the statute, and each acted on that opinion and expressed it in numerous conferences, reports, and correspondence. On November 23, 1931, the Supreme Court handed down its decision in Handy & Harman v. Burnet, 284 U.S. 136, which interpreted and declared the law of affiliation, reversing some previous Board and court decisions on the subject.
On January 21, 1932, petitioner filed a motion with the Board requesting permission to file an amended petition, stating in the motion: “ That certain allegations of error in the original petition are not well founded, and the petitioner seeks to withdraw its allegations in that regard; That * * * the respondent committed certain errors in his determination of taxes concerning which the original petition is silent, and the petitioner seeks to include its allegation in that regard.” The motion was granted and the amended petition was filed. When examined, it was found that the amended petition did not withdraw allegations of error in the original petition “ not well fovmded" but allegations, not of error but of fact, about which there had been no dispute. The amended petition filed secured, as was its evident intent, a substitution of causes of action, a complete reversal of its own contentions initiated by its letter of April 2, 1918, and persisted in through a decade of controversy and litigation with respondent. Permission to file the amended petition was improvidently granted under the facts as disclosed by the record. After securing respondent’s acquiescence in its assertion of affiliation and after agreeing to have the taxes allocated to petitioner and thus procuring the omission of service of notice of deficiency on petitioner’s wholly owned subsidiary, the Tidal Oil Co., which would have arrested the running of the statute of limitations as to that company, and after the statute of limitations by reason of such failure to serve notice on said subsidiary had run as to it, the Tidal Oil Co., the petitioner seeks to reverse its position for its own advantage and to the injury of the respond*1228ent. It has been said that “ The doctrine of equitable estoppel is essentially one of good conscience.” If so, I think this a most appropriate place for its application.
The general doctrine of the law is stated in 20 Corpus Juris 8, thus: “ The doctrine of election of remedies is based upon the rule that a party cannot, either in the course of litigation, or in dealings in pais, occupy inconsistent positions.”
Very tersely it is stated in Baker v. Edwards, 176 N.C. 229: “A man shall not be allowed to approbate and reprobate.”
The Board has frequently applied the doctrine of estoppel in cases before it, and has had its decisions reversed when it has failed to do so in proper cases. In a recent case before the Board, involving a situation comparable to that here presented, the doctrine was applied. In that case a corporation was dissolved, and, after the time allowed by the statute of the state for the officers of the corporation to administer its affairs had elapsed, the person who had been its secretary at the time of dissolution signed as secretary of the corporation a consent in writing purporting to extend the period of limitation within which assessment and collection of the tax in controversy could be made. She had no authority to execute the waiver, and but for it the statute of limitations had run at the time the notice of transferee liability was given to her. There was no evidence of fraud or intended wrong, but the Board held she was estopped to deny her authority to execute the waiver and by reason thereof the statute had not run as to her. Hattie B. Young, 29 B.T.A. 74.
In a case in which the facts are said to be identical with those in the Young case, supra, we took the opposite view — J. O. Hunt, 15 B.T.A. 1388. On appeal to the Circuit Court of Appeals for the Fifth Circuit we were reversed, the court saying:
* * * We are of opinion that Hunt by signing the waiver estopped himself to question its validity, with the result that he was bound to respond to the assessment to the extent of funds in his hands which belonged to the dissolved corporation taxpayer. The circumstances all show that the Commissioner relied on the waiver and is therefore entitled to claim the equitable estoppel asserted by counsel in his behalf. Lucas v. Hunt, 45 Fed. (2d) 781.
Likewise, in the case of San Joaquin Fruit & Investment Co., 16 B.T.A. 1290, we dismissed the proceeding for the year 1920 for the want of jurisdiction, and the respondent appealed to the Circuit Court of Appeals for the Ninth Circuit, which reversed the Board. Burnet v. San Joaquin Fruit & Investment Co., 52 Fed. (2d) 123. In that case the court adopted as well taken a contention made as follows:
* * * inasmuch as the record of the proceedings before the Board discloses that after said notices had been sent out directed as hereinbefore stated, the respondent, San Joaquin Fruit and Investment Company, appeared as *1229petitioner and described itself as tbe “ taxpayer,” “ formerly tbe San Joaquin Fruit Company ” and “ successor to San Joaquin Fruit Company through change of name only,” and for some time participated in the hearings before said Board and raised no question as to the sufficiency of the sixty-day letters sent to it until after the time had expired within which determination could be made against the fruit company, and, the case having been tried in part upon the theory that respondent was liable for the taxes in question, it was estopped t'o change its position and deny its liability.
In the opinion the court further said:
In this connection illumination may be derived from the following statement by Mr. Justice Swayne, in Casey v. Galli, 94 U. S. 673, 680, 24 Fed. 168: “ Parties must take the consequences of the position they assume. They are estopped to deny the reality of the state of things which they have made appear to exist, and upon which others have been led to rely. Sound ethics require that the apparent, in its effects and consequences, should be as if it were real and the law properly so regards it.”
It is interesting further to note that in this San Joaquin Fruit & Investment Co. case, petitioner, as in the instant case, after the statute of limitations had run so as to protect it in another quarter, filed by permission an amended petition alleging and assuming a new and different status in reference to the tax matter involved. The decision in effect annuls the amended pleading. See also Commissioner v. Liberty Bank & Trust Co., 59 Fed. (2d) 320.
In Mrs. R. L. Wheelock, 28 B.T.A. 611, 617, a case reviewed by the Board, where petitioner, having received the benefits of one position, desired to change to another to her advantage, it was said:
In many recent cases the sort of estoppel here argued by the respondent has been applied by this Board and the courts. It may be outside the general rule, but it is based on acquiescence or acceptance of benefits. * * *
Many supporting Board and court cases are cited, to which we add Matern v. Commissioner, 61 Fed. (2d) 663, where petitioner was estopped to say income from property belonged to her husband’s estate after she had insisted before state and Federal authorities that the property was her separate estate; and Haag v. Commissioner, 59 Fed. (2d) 514, where taxpayer’s return having represented her to be a partner under bequest of partnership interest, she was held estopped to deny partnership status after the time had passed ,for the Government to validly assess a tax against the estate of her testator. In these cases there was no misrepresentation, no concealment of facts, no fraud. The parties were just not permitted to change front to the detriment of the other party. There was no legal choice of their first position; the law was as positive there as in the case of affiliations. One who has received benefits and immunities under a law can not thereafter escape its burden by showing the law to be unconstitutional. Chief Justice Taft, in Booth Fish*1230eries v. Industrial Commission, 271 U.S. 208; Daniels v. Tearney, 102 U.S. 415, 421. See also Henry Cappellini, 14 B.T.A. 1269.
The contention that the facts were equally well1 known by each party and that the stipulations do not show that there was any misrepresentation or concealment of material facts on the part of the petitioner, overlooks, as was said by the Supreme Court of Rhode Island, in Humes Construction Co. v. Philadelphia Casualty Co., 79 Atl. 1, the distinction between quasi-estoppel and estoppel by misrepresentation. “ The term ‘ quasi-estoppel,’ ” said the court, “has been applied to certain legal bars which are in some respects analogous to estoppel1 in pais, and which have the same practical operation as an estoppel in pais, but which nevertheless differ from that form of estoppel in essential particulars. The term includes the doctrine of election, the principle which precludes a party from asserting, to another’s disadvantage, a right inconsistent with a position previously taken by him, and certain forms of waiver.” Cf. R. H. Stearns Co. v. United States, 290 U.S. 611.
In W. R. Ramsey, 26 B.T.A. 277, 281, the Board said:
* * ⅜ Tjje petitioner took advantage of the liberal provisions of article 225, supra, and with the approval and consent of the respondent reduced his income-tax payments for each of the years 1922, 1923, 1924 and 1925 by classifying these expenditures currently as business expenses. Having profited by such prior classification, at the expense of the Government, he now seeks again to profit by them in reduction of his taxes for 1926, without offering to do equity by paying the taxes he escaped in the prior years. Inasmuch as the respondent acquiesced and acted upon the petitioner’s classification in such prior years, and as the statute of limitations now prevents collection of such taxes, it is obvious that the petitioner has voluntarily waived his right to change his position, to the detriment and loss of respondent, and is therefore estopped from denying the correctness of his former assumed status. Swain v. Seamans, 9 Wall. 254; Shutte v. Thompson, 15 Wall. 151. Parties must take the consequences of the position they assume. Casey v. Galli, 94 U.S. 673. * * * [Affd., (C.C.A. 10th) 66 Fed. (2d) 316; certiorari denied Oct. 16, 1933.]
See also Rookwood v. United States, (Ct. Cls.) 38 Fed. (2d) 707; Soo v. Oppegard, 18 N.Dak. 1.
A case from the Supreme Court of the State of Minnesota, Tozer v. Ocean Corp., 103 N.W. 509, appears to be in point, and to sustain respondent’s contention. There both parties had knowledge of all the essential facts, and both were mistaken as to the application of the law to the facts. The defendant, a liability insurance company, had issued a policy to the plaintiff Tozer, insuring him against liability for injuries to his employees. The policy provided that “ this policy does not cover any loss from liability for injuries to, or caused wholly or in part by, any child employed by *1231tbe assured contrary to law.” An accident having occurred to a child employed by Tozer (albeit, contrary to law), Tozer informed the vnsurance company of all the foots in the case and upon such facts it was the opinion of the insurance company, as well as of Tozer, that the child had been lawfully employed.
Acting on that theory, the accident insurance company conducted the defense .on Tozer’s behalf. The court held the child had been employed contrary to law and rendered judgment against Tozer, the insured. The insurance company then refused to reimburse Tozer for the amount of the judgment obtained by the child, on the ground that the employment of the child had been illegal and that its insurance contract did not cover the injuries. Tozer brought suit against the insurance company, the Ocean Corporation, under the policy of insurance. The court held that the insurance company was e,stopped to take advantage of the illegality of the employment, in view of the fact that with the full knowledge of all the facts (although under a mistake as to the law) it had assumed a position upon which Tozer had relied, and as the result of which Tozer had permitted the insurance company to conduct the case instead of reserving to himself the right to select his own counsel and conduct his own defence. The court said in part:
* ⅜ * appellant, by its conduct witb reference to the litigation, is estopped from denying its liability under tbe terms of tbe policy. It is alleged that both parties assumed appellant was liable in indemnity; but the question of estoppel is not necessarily determined, by the fact that they were mistaken as to the law. Tbe position of respondent, as tbe insured party, did not prevent him from taking tbe most favorable view of the facts likely to be developed at the trial; and if, for purposes of its otm, appellant chose to proceed as though liable upon, the contract, it cannot change positions simply because it was mistaken as to the effect of the law.
*******
* * ⅜ While it may be that tbe acts of appellant were not such as to constitute a waiver, strictly speaking, yet there was at least an election of positions; and, having pursued a course of action consistent witb its liability, such conduct ripened into an equitable estoppel. No doubt, appellant acted in good, faith; but bad faith is not always necessary to estoppel, and it does not always follow that no estoppel will arise tohen the party to tohom the representation is made has knowledge as to the truth of all the facts. Appellant comes within the rule that a person is precluded from taking, merely because his interests may change, a position inconsistent with the one previously assumed by him, and to the prejudice of a third person. * * * [Italics supplied.]
This doctrine is particularly applicable to taxpayers. Inland Lumber, etc., Co. v. Thompson, 11 Ida. 508.
The document wherein the petitioner, as the parent corporation, assumed the tax liability of the Tidal Oil Co. and the other corporations included in the consolidated returns amounts, in its effect, to *1232a contract in writing based upon the valuable consideration of the benefits of affiliation. Estoppel arising from contracts is recognized, although owing to the better remedy it is not usually invoked. In Hoogendorn v. Daniel, 178 Fed. 765, it is said that “in the absence of fraud, a party to a written contract will be estopped from averring anything against the deliberate recitals and admissions contained in the same, especially when it will prejudice and work injury to others who have acted in good faith upon the belief of the facts stated in the contract.” See also 21 C.J. 1110-1112. In Lewis E. Smoot, 25 B.T.A. 1038, 1043, it is said, “ it has been repeatedly held that by the acceptance of benefits thereunder, one may be estopped from questioning the existence, validity and effect of a contract ”, citing Eareckson v. Rogers, 112 Md. 160; Read, etc., Co. v. Nattans, 130 Md. 465; Manning v. Kansas Coal Co., 81 S.W. 140; Maryland Casualty Co. v. Gates, 290 Fed. 65, which cites Horn v. Cole, 51 N.H. 287.
To the document wherein petitioner assumed tax liability of the other corporations named, a reservation of the “ right to protest against the taxes so assessed,” etc., is added. If petitioner means to contend that this reservation included the right to deny the affiliation which was alleged and constituted the basis of its assumption of the stated tax liability, I am not strongly impressed by the contention. If petitioner at that time concealed and harbored such purpose for later use, it would indicate a fraudulent intent. The reservation amounted to no more than the right to insist that the tax should be correctly computed upon the basis alleged.
LaNSdoN, Smith, and AeuNdell agree with this dissent.