On Motion for Rehearing.
Ingram, Justice.The Revenue Commissioner argues vigorously, in a motion for rehearing, that since the written permission given the taxpayer to file consolidated income tax returns was revoked before the 1968 return was filed, it necessarily follows that the taxpayer could not have relied to its detriment on the earlier permission to file a consolidated return for 1968.
This argument overlooks an ingredient of the inequity this court found .to exist under the circumstances of this case. The record shows that the commissioner allowed the taxpayer to rely on the original permission in the conduct of its business affairs for 1968 as well as for the earlier years. The taxpayer made critical business judgments in reliance thereon before learning that a successor Revenue Commissioner had decided to revoke the permission granted by his predecessor in office. Thus, the commissioner’s tardy decision to revoke necessarily had a retroactive effect on all taxable years in question. It is interesting to note that the taxpayer’s return for 1968 was marked "Consolidated Return” by the Department of Revenue. We decline to hold that the commmissioner may now treat it differently because of the inequity to the taxpayer that would result from doing so.
We also adhere to our original determination that the trial court has not passed upon the true and correct tax liability of the taxpayer for the years in question. The taxpayer has the burden of proof in this case and cannot carry it "by testimony simply affirming the correctness of the return.” See Hawes v. Shuman, 123 Ga. App. 543, 549 (181 SE2d 708) adopted by this court in Hawes v. *547Shuman, 228 Ga. 101 (184 SE2d 178). This issue and the remaining issues in the case must be adjudicated in the trial court and the case will be returned to that court for disposition.
The commissioner’s motion for rehearing is denied.
All the Justices concur. Undercofler, P. J., and Hill, J., disqualified.