dissenting: During the calendar year 1921, which tvas the taxpayer’s accounting period, he received income through the partnership amounting to $9,720.66. This amount was his distributive share of the partnership income for its fiscal year ending *940June 30, 1921, and was taxable to him under the following provision of the Revenue Act of 1921:
Sec. 218. (a) That individuals carrying on business in partnership shall be liable for income tax only in their individual capacity. There shall be included in computing the net income of each partner his distributive share, whether distributed or not, of the net income of the partnership for the taxable year, or, if his net income for sucji taxable year is computed upon the basis of a period different from that upon the basis of which the net income of the partnership is computed, then his distributive share of the net income of the partnership for any accounting period of the partnership ending within the fiscal or calendar year upon the basis of which the partner’s net income is computed.
The method of computing the tax of the individual partner upon income which included his share of the partnership income covering a period which extended back into 1920 was expressly provided in section 205 (c) :
If a fiscal year of a partnership begins in 1920 and ends in 1921, . . . then (1) the rates for the calendar year during which such fiscal year begins shall apply to an amount of each partner’s share of such partnership net income (determined under the law applicable to such year) equal to the proportion which the part of such fiscal year falling within such calendar year bears to the full fiscal year, and (2) the rates for the calendar year during which such fiscal year ends shall apply to an amount of each partner’s share of such partnership net income (determined under the law applicable to such calendar year) equal to the proportion which the part of such fiscal year falling within such calendar year bears to the* full fiscal year.
The partnership’s fiscal year began in the middle of 1920 and ended in the middle of 1921, so the proportion thereof which fell within the calendar year 1920 is one-half. One-half of this partner’s share ($9,720.66) of the partnership income is $4,860.33, and section 205(c) provides that th.e rates for 1920 shall apply to this amount and that the rates for 1921 shall apply to the remaining half.
The taxpayer has computed his tax by taking each half separately and applying to each such amount the rates prescribed in the schedule of that year, as if such amount were a separate and independent subject of tax for that year, and then adding the taxes of the two years together and arriving at his total tax for 1921. Thus he applies to the 1921 proportion the normal tax and the lowest surtax, and to the 1920 proportion the normal tax, and escapes the higher surtax which would result if the 1921 schedule of rates were applied to the income as a whole. This he contends is a literal application of the statute to which he is expressly entitled.
The Commissioner has in effect (the schedules for 1920 and 1921 in this instance carrying the same rates) applied the 1921 rates up to $5,326.06, and then the next higher rates of the 1920 schedule to the remaining $4,860.33. The rates for 1920 and 1921 being the’ *941same, this computation has the same result as the application of the 1921 rates directly to the entire income of the partner without apportionment.
I am of opinion that the Commissioner’s method is not in accordance with the statute. If Congress had chosen to provide this formula, there could have been no room to question its fairness j but, when Congress chooses to prescribe a method as definitely as it did in section 205(c), it must be applied in accordance with its terms, and there is no room for any other method, however more reasonable the Commissioner may believe it to be. The Commissioner’s method presupposes that after apportioning the income the lower rates are first applied to the 1921 income and the higher rates then applied to the 1920 income. I see no basis in the statute for this assumption or its converse. When the statute says that the rates of 1920 shall be applied to the 1920 proportion of income, I see no reason to incorporate the qualification that it means the higher rates applicable to an amount in excess of the 1921 income.
Were this construction otherwise doubtful, it would become unquestionably clear in the light of the further fact that the very method used by the Commissioner is one formerly expressly prescribed by statute and by the 1921 Act repealed. Section 206 of the Eevenue Act of 1918 provided:
That whenever parts of a taxpayer’s income are subject to rates for different calendar years, the part subject to the rates for the most recent calendar year shall be placed in the lower brackets of the rate schedule provided in this title, the part subject to the rates for the next preceding calendar year shall be placed in the next higher brackets of the rate schedule applicable to that year, and so on until the entire net income has been accounted for.
If Congress had intended that this method was to be continued, why did it repeal the provision? We must assume the repeal was deliberate and indicates an intention to discontinue the method then in force. The enactment of a similar provision again in the Eeve-nue Act of 1924 can not be construed as retroactive in the absence of clear language to that effect. This is a situation of a very special nature, which Congress recognized by providing in a special section of the statute for its treatment. In such a situation, the statute must be applied precisely in accordance with its carefully drawn terms. It is the same sort of situation as we had before us in the Appeal of F. J. Thompson, Inc., 1 B. T. A. 535, where a strict application of the statute worked favorably to the Commissioner. Here the reverse happens to be true.
On reference to the Board, Littleton and Tetjssell concur in the dissent.