dissenting: I do not agree with the result reached by the majority of the Board in this proceeding. Everything that petitioner did or omitted was done or omitted with full knowledge of all of the facts and circumstances, which are set forth in the majority opinion, and it is deemed unnecessary to detail them here. As to some of the vital facts, the petitioner furnished the information to the respondent. Respondent granted petitioner permission to file a consolidated return for 1918 upon the petitioner’s showing that a consolidated return, based on an affiliation, would inure to its advantage. It is elementary that petitioner, as well as the respondent, was and is presumed to know the law, and was and is chargeable with knowledge of it, and that not even a mistake of law can be relied on as a ground of escape from liability. Handy & Harman v. Burnet, 284 U.S. 136, now invoked by the petitioner, did not change the law. The law in respect to affiliation remained the same all the while. In that case the United States Supreme Court merely applied to the facts of that case the law as it was then and before. In my *1233opinion, upon all of the undisputed facts and under all of the circumstances disclosed by the record, there is at least an implied waiver on the part of the petitioner of its right to now avoid, by renouncing an affiliation with the Tidal Oil Co. in 1918, the full consequences of such affiliation upon which was and is based its consolidated return for that year and of its agreement, based thereon, to pay the taxes of the Tidal Oil Co. for that year, when it is too late for respondent to change his position thereby induced, without prejudice or irreparable damage. Currie v. Continental Casualty Co., 147 Ia. 281; 126 N.W. 164, 165; List & Son Co. v. Chase, 80 Ohio St. 42; 88 N.E. 120, 122; Supreme Tribe of Ben Hur v. Hall, 24 Ind. A. 316; 56 N.E. 780, 783; Cassimus v. Scottish Union & Nat. Ins. Co., 135 Ala. 256; 33 So. 163, 167; 40 Cyc. 253, 257; and Black’s Law Dict. (2d ed.), p. 1216. See also New York Trust Co. v. Commissioner, 54 Fed. (2d) 463; certiorari denied, 285 U.S. 556; Henry Cappellini, 14 B.T.A. 1269; and Corinne Porter Scruggs, 29 B.T.A. 1102.
In Supreme Tribe of Ben Hur v. Hall, supra, it is said:
A waiver may be created by acts, conduct or declarations insufficient to create a technical estoppel.
In Cassimus v. Scottish Union & Nat. Ins. Co., supra, it is stated:
* * * While an estoppel carries with it a waiver, the latter may, however, arise where, strictly speaking, on the same state of facts an estoppel would not. * * *
In the majority opinion it is said:
Despite Ms pleadings the respondent later stipulated that all the relevant facts were known to him at all times material hereto and in his brief he expressly states that he does not now rely upon estoppel in pais. Therefore further discussion of that kind of an estoppel would be superfluous here.
Bespondent merely abondened a contention based on a rule of law applicable to admittedly known facts. Like a stipulation of law, this abandonment is not binding on the Board. It is not even binding on petitioner, who was not thereby prevented from pressing a contention to the contrary. It is the Board’s function to apply the law to the facts, which are put in issue by the pleadings, whether they be stipulated, admitted, or proved. Knowledge of all relevant facts at all times material does not prevent the operation of the bar of estoppel in pais; its application depends upon those facts and their accompanying circumstances; and in my opinion there was enough in the agreement of February 8, 1928, duly brought to the notice of respondent, notwithstanding the reservations therein which do not relate to or affect the affiliation upon which the consolidated return for 1918 was based as between petitioner and respondent, coupled with the further fact that without questioning the affilia*1234tion the petitioner, for 1918 and several subsequent years, paid the taxes admitted, by the consolidated returns based on an affiliation, to be due and coupled with all the other facts and circumstances, to lull the respondent into a justifiable feeling of security, induced by petitioner’s revealed intention or position, from which respondent can not now escape without irreparable, unconscionable prejudice and injury to the rights of the Government, which he is here protecting; and since estoppel in pais bars a change in intention or position of the character which petitioner is here seeking to effect, the petitioner is, in my opinion, now barred by estoppel in pais from changing his intention or position on the subject of affiliation. Dickerson v. Colgrove, 100 U.S. 578, 580, and Stearns Co. v. United States, 290 U.S. 611. The Supreme Court in the .former case stated:
* * » jje says further, that he intended, to give her more it she needed it. All this was communicated to Lowell Morton. What was the effect upon him. He was lulled into security. He took no measure to perfect his title, nor to procure any redress from the Klines * * *. Between that time and the date of the letter was a period of nearly seventeen years. ,⅜ * ⅜ The estoppel here relied upon is known as an equitable estoppel, or estoppel in pais. The law upon the subject is well settled. The vital principle is that he who by his language or conduct leads another to do what he would not otherwise have done, shall not subject such person ho loss or injury by disappointing the expectations upon which he acted. Such a change of position is sternly forbidden. * * * This remedy is always so applied as to promote the ends of justice. It is available only for pi'otection and can not be used as a weapon of assault. It accomplishes that which ought to be done between man and man, and is not permitted to go beyond this limit. It is akin to the principle involved in the limitation of actions, and does its work of justice and repose where the statute can not be invoked. * * * [Emphasis supplied.]
In the latter case the Supreme Court stated:
The applicable principle is fundamental and unquestioned. “He who prevents a- thing from being done may not avail himself of the non-performance which he has himself oecasipned, for the law says to him in effect ‘ this is your own act, and therefore you are not damnified.’ ” Dolan v. Rodgers, 149 N.Y. 489, 491; and Imperator Realty Co. v. Tull, 228 N.Y. 447, 457; quoting West v. Blakeway, 12 Man. & G. 729, 751. Sometimes the resulting disability has been characterized as an estoppel, sometimes as a waiver. The label counts for little. Enough for present purposes that the disability has its roots in a principle more nearly ultimate than either waiver or estoppel, the principle that no one shall be permitted to found any claim upon his own inequity * * *. Imperator Realty Co. v. Tull, supra. A suit may not be built on an omission induced by him who sues. Swain v. Seamens, 9 Wall. 254, 274; United States v. Peck, 102 U.S. 64; Thomson v. Poor, 147 N.Y. 402; New Zealand Shipping Co. v. Societe des Ateliers [1919], A.C. 1 6; Williston Contracts, Vol. 2, §§ 689, 692.
These Supreme Court cases and the instant proceeding are distinguishable from Newport Co., 22 B.T.A. 833; affirmed in Newport Co. v. Commissioner, 65 Fed. (2d) 925; certiorari granted, 54 Sup. Ct. *1235480, from Southwestern Investment Co., 19 B.T.A. 30, and from other oases cited with it in the majority opinion, upon the facts, since in these distinguishable cases there were no facts found to which the rule of equitable estoppel in pais should be applied.
In the majority opinion, in the instant proceeding, it is also stated:
There is Rere no suggestion of * ⅜ * omission, negligence, ⅞ ⅜ ⅜ or unfair conduct on the part of the petitioner.
In my opinion, from all the facts and circumstances, it appears that the petitioner has been and is “ guilty of ” and chargeable with laches, since it “ slept upon its rights ”, which are under review here, for nearly 14 years without asserting them, when, as a matter of fair dealing “ between man and man ” and in good conscience, it should have asserted them, and since in 'the meantime, without fault on his part and with justification, the respondent was obviously thereby induced to take a position from which he can not now retrieve himself without prejudice and irreparable damage to the Government of the United States, which he represents in this proceeding. Hence the petitioner should be held to be barred by its laches from now changing its intention or position to the detriment of the Government, as he seeks to do here. Patterson v. Hewitt, 195 U.S. 309, 317-318, 321-322; Ward v. Sherman, 192 U.S. 168, 176-177; Penn Mutual Life Ins. Co. v. Austin, 168 U.S. 685, 697; Richards v. Mackall, 124 U.S. 183, 189; Hansen v. Glick, 216 Fed. 164, 172; London Bank v. Horton, 126 Fed. 593, 601; certiorari denied, 194 U.S. 631; 21 C. J. 211, 231, 232; and Black’s Law Dict. (2d ed.), p. 692. Laches is defined in 21 C. J. at page 211 as “ such neglect to assert a right as, taken in conjunction with lapse of time more or less great, and other circumstances causing prejudice to an adverse party, operates as a bar in a court of equity.”
The doctrine of laches may be applied in a legal proceeding, Ford v. Huff, 296 Fed. 652; even when not pleaded. Penn Mutual Life Ins. Co. v. Austin, supra.
It is well settled that the law of equitable estoppel, including the law of equitable estoppel in pais, must be applied by the Board when the facts in a proceeding before the Board require its application. Matern v. Commissioner, 61 Fed. (2d) 663; Haag v. Commissioner, 59 Fed. (2d) 514; Commissioner v. Liberty Bank & Trust Co., 59 Fed. (2d) 320; Burnet v. San Joaquin Fruit & Investment Co., 52 Fed. (2d) 123; Lucas v. Hunt, 45 Fed. (2d) 781; Hattie B. Young, 29 B.T.A. 74; Mrs. R. L. Wheelock, 28 B.T.A. 611, also cited in Member Seawell’s dissenting opinion in this proceeding, but, apparently, not for the limited purpose here cited. The authorities heretofore cited upon the subject of laches establish that laehes is but a species of equitable estoppel. It is quite similar to equitable estoppel m pals. *1236A chief distinction is that in the latter there may be present the element of misleading activity (affirmative conduct), while in the former there is present the element of misleading inactivity (lack of affirmative conduct). The activity in equitable estoppel in pais may consist of intentional failure to act by making a disclosure. In laches the inactivity may consist primarily of unintentional failure to do anything. There is therefore no sound reason in principle why the Board should not thus apply the law of equitable estoppel by laches as well as the law of equitable estoppel by conduct, or in pais, when the facts require its application; and it should do so. The result is the same whether the equitable estoppel, as a bar to the successful belated assertion of a right, is founded on misleading activity such as intentional failure to disclose in equitable estoppel in pais, or founded on misleading inactivity such as negligence in equitable estoppel by laches', and the reasoning, starting with either premise, which leads to the result, the bar of the belatedly asserted right, is not only analogous but it is quite similar, if not substantially the same. Dickerson v. Colgrove, supra, and Stearns Co. v. United States, supra. See the quotations from these cases and compare them with the discussions in the cases cited upon the subject of laches (at the pages of the reports there indicated).
For the reasons heretofore set forth, the petitioner should now be barred from successfully asserting a right to change, belatedly, its intention or position with respect to affiliation, by denying an affiliation in 1918, so as to enable it to escape its full liability based on an affiliation with the Tidal Oil Co. in that year, as reported in its consolidated return for that year based on such affiliation, and as reflected in the agreement of February 8, 1928, based thereon, which induced respondent to pursue, with justification, a course from which he can not now escape without prejudice or irreparable damage, all as more particularly pointed out herein.