concurring: In my judgment, the provision of the Act of 1879, quoted in the majority opinion, has to do with an administrative function of Federal tax collection, outside the statutory jurisdiction of this Board. I agree, therefore, only, with the result reached in that opinion.
As the majority opinion indicates, if we have jurisdiction here on any ground, to adjudicate petitioner’s rights under the quoted provision, then, that adjudication is conclusive unless reversed upon review. A finding of fact, possible, in my opinion, even upon the present record, that the petitioner was entitled to the benefit of the quoted act, would require a decision of no deficiency upon that finding. In such circumstances, if the bank in receivership were to become able to pay the disputed tax without loss to its depositors, within the statutory period for assessment and collection of the disputed tax, a practical possibility, no part of the pending deficiency could be collected. On the other hand, assuming the correctness of the conclusion of fact upon which the majority opinion is based, as soon as the decision entered upon that opinion becomes final, the taxpayer bank, and, a fortiori, its depositors, can not have the relief provided for them in the act even though the fact, upon which, alone, the benefit of the statute depends, admittedly arose later during the receivership — a similar possibility. I think those results obviously repugnant to the expressed statutory intendment, which is limited to the relief of depositors in such banks. The basis for or bar to that relief is not necessarily permanent, but exists, only, concurrently with the factual premise supporting it. The legislative intention is merely to constitute the depositors in such banks, preferred creditors as to the Government’s tax claims under the circumstances provided in the act. To permit the conclusive adjudication of a right to that preference before satisfaction of the depositors or final liquidation of the pending receivership, is wholly irreconcilable with that intention.
AruNdell agrees with the above. Smith dissents from the majority opinion.