dissenting: The majority opinion overlooks several facts that seem to me to be important, and by reason of these omissions in the premise an erroneous conclusion is reached. First, the tax imposed by section 351 was a new tax. Theretofore Congress had imposed a heavy tax on corporations improperly accumulating surplus in order to avoid surtax on the stockholders, but it was recognized that the administration of the statutes had not been attended with signal success. In the enactment of the Revenue Act of 1934 provisions relating to improper accumulations of surplus were retained, with a change of rates (section 102), and personal holding companies were placed in a separate classification, subjected to high rates of taxes, and surrounded with a number of statutory provisions wholly different from those applicable to any other class of taxpayer. That Congress was fully aware of the novelty of the tax is obvious from the Congressional Committee reports. 73d Cong., 2d sess., H. Rept. 704, p. 11; S. Rept. 558, p. 13.
Second, the Treasury Department recognized the novelty of the tax and the difficulties facing taxpayers subject to it by issuing T. D. 4529 on March 7, 1935 (C. B. XIY-1, p. 82) granting to personal holding companies an extension of time to April 15, 1935, for the filing of surtax returns, form 1120H, and the payment of the tax. In this case the collector granted the taxpayer a further extension of 30 days.
Third, section 351 is not an isolated, independent section to be administered without reference to other provisions of the statute.
Fourth, the petitioner and its stockholders obviously acted in good faith and filed all returns within the time allowed therefor.
The tax on personal holding companies is not strictly a revenue measure. Its purpose is to prevent avoidance of normal tax and is recognized as placing a “heavy penalty” on the companies coming within its reach. See Congressional Committee reports, supra. The rates of imposition are graduated from 30 to 40 percent on “undistributed adjusted net income” as compared with 13¾ percent on the “net income” of other corporations. These discriminatory rates were not made absolute. The same section that imposes them contains the *814mitigating provision allowing the stockholders to report the income and pay the tax at the rates prescribed for individuals, which begin with the comparatively low rate of 4 percent. The Treasury Department recognized the radical departure of this new imposition from the long established method of income taxation and the difficulties of administration by issuing T. D. 4529, granting a blanket extension of time for filing returns and paying the taxes. This new imposition required a new kind of return in order to arrive at “undistributed adjusted net income”, which was the measure of the tax. This form, 1120H, was apparently not ready for distribution in time to permit filing by March 15, 1935. The earliest date of publication of this form in the commercial tax services is March 20, 1935. Regulations 86 were not approved until February 11, 1935, and not released until March 2, 1935. Rept. No. 13, Prentice-Hall Federal Tax Service, 1935; Bulletin No. 7, Commerce Clearing House Federal Tax Service, 1935. The date they were available to the public was no doubt later than that. The “adjusted net income” and the “undistributed adjusted net income” not only differ from each other, but are vastly different from the net income that is the basis of the ordinary income taxes in the 1934 and prior acts. In arriving at the “adjusted net income” certain allowances are made for income, war profits, and excess profits taxes and for charitable contributions and gifts not allowable to other corporations, and capital gains and losses are given a different treatment. In arriving at “undistributed adjusted net income” deductions from “adjusted net income” are allowed for a percentage of the excess of the adjusted net income over certain dividends from personal holding companies, for amounts set aside to retire indebtedness, and for dividends paid. This short statement of the complexity of calculation demonstrates the well-nigh impossibility of preparing returns without the aid of official interpretation and forms. It also brings the case within the principles of the case of Morrow, Becker & Ewing Co. v. Commissioner, 57 Fed. (2d) 1, where the taxpayer sought to file amended returns some nine months after filing its original return. The statute affecting the case had been enacted shortly before the original return was filed. The court held that “while there is no statutory authority for an amended return, amended returns are frequently permitted” and that they should have been accepted by the Commissioner in that case. The opinion reads in part:
* * * In view of' the radical changes in the law, of which the petitioner had scant notice, if any, in fairness and justice to the taxpayer the returns should have been received and considered. Taxes are assessed on income and not on honest mistakes of the taxpayer. It was the duty of the Commissioner to do nothing arbitrary or unreasonable that would deprive petitioner of rights *815created by the new law and the regulations thereunder. It was a breach of discretion on the part of the Commissioner not to receive the amended return from 1925 under the circumstances disclosed.
This petitioner and. its stockholders are in a more favorable position to claim all the benefits of the law than the taxpayer in the Morrow, Becker & Ewing case. They acted as promptly as the circumstances would permit and the filing of amended returns under the facts here can not be said to be an afterthought prompted solely by a desire to reduce taxes. The stockholders and the petitioner - corporation filed timely returns reporting for taxation the income calculated in accordance with the general pattern of the income tax statutes. The only omission that can be charged to them is the failure of the stockholders to include in their original returns the then new “adjusted net income” which, because of the tardiness of the Treasury Department in distributing official information and forms, they could not reasonably be expected to know how to compute. Had the stockholders delayed filing their individual returns until the time allowed for filing the corporate return, they would have been subject to penalties and interest for their tardiness. It seems to me that the Commissioner is taking an arbitrary position in refusing to allow the stockholders to conform their returns to that of the corporation within the time allowed to the corporation to calculate and report the new and different kind of income taxed under section 351.
Under the circumstances here I do not think that the doctrine of election applies. In the first place, neither the statute nor the regulations require that the stockholders report their pro rata shares of the corporate income in their original returns. There is no expressed right of election, and if one can be implied it is not in terms confined to an original filing. In the second place, the making of an election presupposes knowledge of the facts and of the circumstances present. “In order to constitute a valid election, the act must be done with a full knowledge of the circumstances of the case, and the right to which the person put to his election was entitled.” McIntosh v. Wilkinson, 36 Fed. (2d) 801.
It is not my view that shareholders should be permitted to file amended returns in all cases. It may be that in other cases, and particularly for later years, the corporate return and the shareholders’ returns can be filed at the same time and all parties will know at that time the method of reporting that is most advantageous, and under such circumstances they would be held to have made a deliberate, conscious election. But here, where the corporation was granted additional time for filing in recognition of the Treasury’s tardiness in supplying information and forms there was a real *816obstacle in the way of the stockholders’ awaiting the filing of the corporate return before filing their individual returns. Had they done so, they would have been subject to the charge of delinquency. In the circumstances of this case I am of the opinion that the Commissioner’s refusal of the amended returns was arbitrary and should not be sustained. Cf. F. Harold Johnston, Executor, 33 B. T. A. 551.