*1147 DEDUCTION - TAXES - ACCRUED AND LATER HELD NOT DUE. - The petitioner, which refused to pay a state gasoline tax on solvent used by it, but made a closing accrual upon advice of counsel, was not entitled to deduct the amount of the accrual as taxes for 1937 where the court later decided that the tax never applied to the solvent.
*287 The Commissioner has determined deficiencies in income and excess profits taxes of $3,600.09 and $1,169.95 for the calendar year 1937. The issue is whether the petitioner may deduct in 1937 state gasoline tax which it accrued in that year but never paid, contending successfully that the law did not apply.
FINDINGS OF FACT.
The petitioner, a corporation, filed its tax return for the period in question with collector for the district of Mississippi.
The petitioner was engaged in the business of extracting turpentine, pine oil, and resin from stumps and other waste wood. A quantity of solvent made from petroleum products was used by the petitioner in this process. *1148 The assistant Motor Vehicle Commissioner of Mississippi, contending that this solvent was usable in the operation of motor vehicles, assessed a state gasoline tax in 1936 on the solvent received and used by the petitioner in that year. This tax was levied under sections 5(a) and 8(a) of chapter 162, Laws of Mississippi, 1936, wherein "gasoline" is defined as follows:
* * * The word "gasoline" as used in this act shall include all liquid fuels which are used or usable in propelling motor vehicles, either when used alone or when mixed, blended, or compounded, including liquids ordinarily, practically and commercially usable in internal combustion engines for the generation of power, and all distillates of, and condensates from petroleum, natural gas, coal, coal tar, vegetable ferments, and other products so usable and received in this state, having a gravity test above 46 degrees tagliaubes baume scale, at a temperature of 60 degrees F.
The petitioner paid the tax assessed for 1936. Other companies engaged in similar business also paid taxes assessed on them for the use of the solvent.
A bill of complaint against the Motor Vehicle Commissioner of Mississippi was filed by the*1149 petitioner on August 6, 1936, in the Chancery Court for Forrest County, Mississippi, in which it alleged that the nature of the solvent and the use to which it was put did not fall within the taxing statute and asked for temporary and permanent injunctions against the future collection of the tax. It alleged, further, that the tax was on interstate commerce and that the exaction of it would be in violation of the Constitutions of the United States and the State of Mississippi. The Motor Vehicle Commissioner demurred to the bill of complaint and, on August 15, 1936, the demurrer to the bill was sustained by the court.
An appeal from the decree sustaining the demurrer was taken by the petitioner to the Supreme Court of Mississippi. That court on January 25, 1937, reversed the action of the Chancery Court in sustaining the demurrer and remanded the case to the lower court. Dixie*288 ; . The court stated in its opinion:
The bill of complaint herein clearly alleges that the solvent or reducing agent used by appellant is not used in propelling motor vehicles, and is not ordinarily, practically, *1150 and commercially usable in internal combustion engines or in propelling motor vehicles, and states the facts upon which these allegations are based, and consequently upon the pleading here we think it must be held that this solvent does not come within the definition of gasoline upon which a tax is imposed by section 8(a) of the act. The demurrer interposed to the bill of complaint should, therefore, have been overruled, and the decree of the court below will be reversed and the cause remanded.
The petitioner, after the date of this decision, denied that it owned and ceased to pay gasoline tax on the solvent used by it. The Motor Vehicle Commissioner continued to assess and demand payment of the tax throughout 1937. The Motor Vehicle Commissioner advised the taxpayer then that he was uncertain whether the tax was due for the use of the solvent and that the determination of liability was then dependent upon the final decision of the court. Other concerns using solvent in a similar process, with one exception, paid gasoline taxes assessed in 1937 for its use.
The Motor Vehicle Commissioner, after the decision of the Supreme Court of Mississippi in January 1937, prepared evidence*1151 and argument to support its position that the tax was due. He secured from the petitioner a sample of its solvent and tested its ability to run an automobile engine. He filed an answer to the bill of complaint on May 15, 1937, in which he denied that the petitioner was not liable for the tax and that it was entitled to an injunction. The Motor Vehicle Commissioner was represented in this action by the Attorney General of Mississippi and his assistant.
The petitioner and the Attorney General of Mississippi, on December 6, 1938, filed an agreed statement of facts in the action brought by the petitioner and, on December 21, 1938, the Chancery Court of the First Judicial District of Hinds County, Mississippi, rendered its final decree perpetually enjoining the Motor Vehicle Commissioner from assessing gasoline tax under chapter 162 of the 1936 Laws on the solvent used by the petitioner. This result was affirmed by the Supreme Court of Mississippi on October 23, 1939. ; *1152 . The Mississippi State Legislature, in its regular 1938 session, by enactment exempted the solvent used by the petitioner from gasoline tax from and after June 1, 1938.
The petitioner keeps its books and files its income tax returns on an accrual basis. Entries accruing the gasoline tax assessed on it by the Motor Vehicle Commissioner were directed to be made by the petitioner's attorneys by letter dated in December 1937. The entries were made at some time between January 1 and March 15, 1938, as of December 31, 1937, in the course of closing and auditing the 1937 *289 books. The amount of the tax thus accrued for 1937 was $20,839.38. This amount was deducted by the petitioner on its income tax return for 1937. The petitioner never paid the taxes. The Commissioner disallowed the deduction.
The amount of $20,839.38 was included in the petitioner's 1938 income on its tax return, in view of the decree of December 1938, as recovery.
OPINION.
MURDOCK: This case is similar in some respects to *1153 , and . The Dougherty's Sons, Inc., case has recently been reversed, . However, the present case has points of difference from the Dougherty's case and is like some other cases of the Board which have been affirmed by other Circuit Courts. It is not a case of an unconstitutional tax, but one of mistake in thinking that a taxing act applied to this petitioner. ; affd., . Cf. ; affd., . The tax was never due and the efforts to collect it were all a mistake, as the court finally decided the law did not apply. The collector admitted his doubt after the decision on the demurrer. The petitioner, believing that no tax was due, ceased and refused to pay, and only made a closing accrual upon advice of counsel. The Commissioner determined that the 1937 taxes were not deductible from income as a properly accrued expense of that year. We hold, upon authority of the cases cited above, that he*1154 did not err.
Reviewed by the Board.
Decision will be entered for the respondent.
SMITH dissents.