dissenting: We regret our inability to concur in the conclusion reached by the majority. But it seems to us that this result is unnecessarily inequitable and harsh, and contrary to the evident if not to the explicit intent of the statute.
Section 215 of the National Industrial Recovery Act1 “provides for a new tax.”2 Subdivision (a) of that section imposes the tax “For each year ending June 30” and subdivision (d) requires “Every corporation liable for tax under this section” to “make a return under oath within one month after the close of the year with respect to which such tax is imposed * * It permits the Commissioner *805to “extend the time for making the returns and paying the taxes imposed by this section under such rules and regulations as he may ■prescribe with the approval of the Secretary, but no such extension shall be for more than 60 days.” (Emphasis supplied.) On June 23¡ 1933, the Commissioner, with the approval of the Acting Secretary, extended this period to August 31 by Treasury Decision 4368. On August 15, Regulations 64 were promulgated, article 55 of which confirmed this extension to August 31. On August 24 a further extension to September 29 was granted and Regulations 64 were amended accordingly.
Petitioner filed its original return for the first year on July 29, which was within the period fixed in terms by the statute; and attempted to file its amended return for the first year on September 8, which was after the original period had expired, but well within the final extension properly granted to September 29 by the amendment to Regulations 64. That the amended return was submitted within the permissible period is apparently conceded by respondent.
In seeking to determine the true meaning of the phrase “its first return”, as applied to this proceeding, resort to the general plan and purpose of the legislation may be of value. Sections 215, which imposes the capital stock tax, and 216, levying the excess profits tax, are closely related. We find that “In order to avoid controversy as to the value of the capital stock, the [capital stock] tax is imposed on the value declared by the corporation. A reasonable value is, however, assured by means of an excess profits tax * * * The primary object of this tax is to induce corporations automatically to declare a fair value for their corporate stock * * *.”3 (Emphasis supplied.)
To hold, therefore, that a corporation may not increase to its fair value the figure placed by it upon its capital stock is to apply the related provisions of the two sections in such a manner as precisely to defeat their declared “primary purpose.” Unless some inescapable legislative language or plan requires this consequence we feel it should be avoided. It is evident, however, that, as to the plan of the statute, no different result would have been reached had the petitioner refrained from declaring any value until the date when it submitted its amended return. Had it done so, it would concededly have been in position to proceed upon the value so declared. We can not see what harmful result could have been envisaged by Congress in permitting it to accomplish the same purpose by filing its amended return within the same period.
As to the language itself, an examination of section 215 seems to us to make it clear that when the words “first return” were used *806they were intended to designate the return for the first year, thus distinguishing that return from the one made for the subsequent year, in which the original value could not be amended. So far as we know, no tenable reason for any different meaning has ever been advanced. And that this is the true intent of the provision-is we believe evident from a statement made in connection with the provisions of section 701 of the 1934 Act which is in fañ materia with section 215. The managers on behalf of the House, in submitting the conference report on this section, said:4 “For the first year the tax is measured by the value of the capital stock as declared by the corporation as of the close of its last taxable year ending on or before June 30, 1934. The value of the capital stock having teen declared for the first year, such value may not be subsequently amended.” (Emphasis supplied.) Construing the critical words as we do to mean “its return for the first year”, no reason of logic or interpretation appears to prevent the acceptance by the Commissioner of an “amended return for the first year” subject only to the requirement that it be filed within the time provided by law.
The case of Scaife & Sons Co. v. Driscoll, 94 Fed. (2d) 664, may seem at first glance to authorize the result reached by the majority. But more careful inquiry reveals that in that case the amended return was filed after the period permitted by law. The same is true of Automobile Loans Inc., 36 B. T. A. 809. We think that distinction from the present proceeding is fundamental5 and that the principle of Oertel Co. v. Glenn, 13 Fed. Supp. 651, is applicable here and should be followed.
Arundell and Mellott agree with this dissent.48 Stat. 207.
S. Rept. No. 114, 73d Cong., 1st sess., p. 6.
See footnote No. 2, supra.
Cong. Record, vol. 78, part 7, p. 7827.
See McIntosh v. Wilkinson, 36 Fed. (2d) 807, 810. Cf. Grant v. Rose, 24 Fed. (2d) 115, 118; Buttolph v. Commissioner, 29 Fed. (2d) 695, 696.