dissenting: I do not think that the Commissioner has determined a deficiency within the meaning of the applicable statute quoted in the majority opinion. Undoubtedly the first part of the Commissioner’s letter of December 29, 1938, to the taxpayer would have been a valid determination of a deficiency, if it had stopped there. But it seems to me that the first part of the letter is completely nullified, in so far as a deficiency in estate tax is concerned by the concluding paragraph of the letter, which reads as follows: “However, as the periods allowed by the statute for the assessment of, or proceedings in court to collect, such deficiency, against the estate, the executors and the transferees, have all expired, no such assessment is proposed or will be made, and no such court proceedings will be brought.”
*190Section 906 (e), Revenue Act of 1926, reads as follows:
(e) If the assessment or collection of any tax is barred by any statute of limitations, the decision of the Board to that effect shall, for the purposes of this title and of the Revenue Act of 1926, be considered as its decision that there is no deficiency in respect of such tax.
Of course the above quoted language of the statute is intended to apply to cases which have been appealed to the Board from valid determinations of deficiencies by the Commissioner and where subsequently the Commissioner either concedes that the statute of limitations has run or the Board finds from the evidence that it has run.
Here the Commissioner conceded beforehand that the statute of limitations has run, and therefore he proposes no assessment or collection of the so-called deficiency. What he has done is a mere futility in so far as any deficiency is concerned. It would, in my opinion, be an idle thing for us to take jurisdiction of such a proceeding because there is nothing for us to decide. Certainly the law does not require us to do a futile thing.
I think in the instant case that Tyson v. Commissioner, supra, quoted in the majority opinion, affirming the Board’s dismissal of that proceeding, is controlling.
It is true of course, as pointed out in the majority opinion, that there were some differences in the purpose of the Commissioner’s letter in the Tyson case from those present in the instant case, but I do not think those differences are substantial enough to justify a distinction in the Board’s action in the two cases. The court in the Tyson case, after stating that it was in no way passing upon the Commissioner’s claim that Tyson had been paid an erroneous refund, said:
* * * We are merely bolding that the Board of Tax Appeals is an administrative body with limited jurisdiction; that its powers are prescribed by Congressional enactment; that before its jurisdiction may be invoked, the Commissioner must have given the required notice of a determination of a deficiency tax. In other words, unless the Commissioner makes a reviewable order (in this case a determination of a deficiency) no review from the order of the Board of Tax Appeals lies. [Italics supplied.]
It seems to me that the letter of the Commissioner to the taxpayer in the instant case, set out in the majority opinion, does not present any “reviewable order,” to use the language of the court in the Tyson case. Therefore, there is nothing for us to hear and decide and we should dismiss the proceeding for lack of jurisdiction. For the reasons which I have herein stated, I respectfully dissent from the majority opinion.
TURNER and Mellott agree with this dissent.