dissenting: The holding that the respondent acted arbitrarily in refusing to approve the proffered bond seems to me to be erroneous. The bond was not filed with the Commissioner but was merely tendered for approval and filing. The taxpayer’s remedy, if injured or aggrieved by his refusal to approve it, was recourse to a court of general jurisdiction. A court, by writ of mandamus, might have compelled him to act; but even a court would not attempt to control his judgment or discretion unless he acted arbitrarily, and a conclusion that he has so acted would be reached only when clearly justified by the evidence.
Even assuming that this Board has jurisdiction to determine whether the Commissioner did, or did not, act arbitrarily, which is doubtful, the evidence is wholly insufficient to justify the conclusion reached by the majority. He sought and secured the written advice of the General Counsel of the Treasury Department, which was introduced in evidence before us. The General Counsel recommended disapproval of the bond because it would be of no value to the Government since the mere return of income by a charitable organization would not result in the collection of the tax due, but would have the effect of granting an exemption from tax and thus defeat the very purpose of section 44 (d).
As pointed out by the Court of Claims in Moore v. United States, 10 Fed. Supp. 143; certiorari denied, 296 U. S. 583, “The statute places property received as a profit by the decedent during his lifetime and transmitted by his death in the same class as the distribution, sale, or other disposition of such property during the taxpayer’s lifetime.” The obvious purpose of Congress in adding the amendment in 1932 which permits the estate of a decedent, his next of kin, or legatees to file a bond, is to protect the revenue and is not to grant an exemption,
*897The executors filed two income tax returns approximately a year after the death of the decedent, one for the period prior to her death and one for the period subsequent to her death. In neither did they report any portion of the profit in question. An amended return for the period subsequent to the death of the decedent was filed on February 19, 1936, in which it is stated that it is the contention of the executor that all income, since it inures to the benefit of beneficiaries which are corporations exempt from tax, is exempt from taxation even befofie distribution to the beneficiaries. Perhaps the question whether the income may thus be exempted from tax is not properly before us and need not be determined; but in view of the questions which may arise, the possible ambiguity of section 44 (d), the duty of the Commissioner to protect the revenue, and the fact that advice of counsel was secured and followed, I think it should not be held that he acted arbitrarily in withholding his approval of the proffered bond.
Harron agrees with this dissent.