dissenting in part: As I view this proceeding there are not two, but three major questions submitted for our decision, viz., (1) whether the Commissioner was estopped from reopening the controversy with the petitioner at the date of the deficiency notice; (2) if there was no estoppel, whether such controversy was reopened, the deficiency determined, and the jeopardy assessment made in conformity with the law at that time; and (3) if the Commissioner had the authority to reopen and exercised such authority in conformity with law, whether he erred in his determination of the value at March 1, 1913, of the stock which was sold by the petitioner in the taxable year.
Notwithstanding some decisions of the courts that seem to support the petitioner’s contention of estoppel, I am convinced that the Commissioner had the legal right to reopen this controversy and has such right to reopen any controversy over the tax liability of taxpayers at any time prior to the expiration of the statute of limitations, or to a stipulation of the parties in writing that the case is closed. Such authority is as helpful to citizens as to the Government since in every nominally closed tax controversy its absence would necessarily deprive taxpayers of the right to further consideration and redetermination of tax liability, even though new and conclusive evidence of over-payments or overassessments should be discovered. Nor do I believe that the fact that a controversy has been closed by one Commissioner and reopened by a successor is in any way material. The official acts of the Commissioner are not personal, but public'. There may be changes in the incumbency of an administrative office, but the functions of such an office are continuing. Whatever is lawful for one Commissioner as to his own acts is equally lawful for his successor in respect of the same acts.
Having reached the conclusion that there is no estoppel as to Commissioner Blair in this proceeding, even though his act was a review of a determination made by his predecessor, it is necessary next to inquire whether the reopening of this controversy was in conformity with law. The statute which governs here provides that the Commissioner’s right to assess and collect taxes in addition to the amount shown in the tax return of a taxpayer shall expire five years after such return is filed in- the office of the collector for the district in which the taxpayer is liable for Federal taxes. Unquestionably this provision was included in the taxing statutes for the purposes *1176of setting a limit to the duration of tax controversies and to relieve taxpayers, after a reasonable time, of the menace of additional claims against income long since spent or capitalized. This purpose is more definitely and certainly accomplished by the Revenue Act of 1926, which provides that after the expiration of the statutory period both the liability of the taxpayer and the remedy of the Government are extinguished.
Methods of business and of accounting are so diverse and complex that it is unavoidable that the most efficient and conscientious administrators of the tax laws and the most scrupulous and painstaking of taxpayers should arrive at different results, and long continued conferences for adjustment logically and necessarily follow. Without some statutory provision for terminating such disputes few men or corporations in business in any large way could make any definite plans for future operations. Congress has recognized this situation and provided for a time limit within which further claims of the Treasury must be made and has also taken notice of the fact that in many controversies the issues are so involved and the facts are so obscure and difficult of proof that a final and true determination of tax liability within the statutory period is impossible, and has provided that the time in which additional taxes may be assessed and collected may be extended by a written consent properly executed by the parties.
It is clear that it was intended that such an extension should be the voluntary agreement of the parties and the word “consent” used in connection with the provision supports this view. If the statute has run the power to collect is gone unless there is a properly executed voluntary agreement for extension. The petitioner in this proceeding had been in controversy with the Commissioner over his return for 1919 for nearly five years. At a time when he believed that his tax liability for the taxable year, if any, was about to be tolled by the statute of limitations which would simultaneously bar him from making further cl aim for refunds and abatements and the Commissioner from further assertion of deficiencies, he was asked to enter into an agreement or consent for the extension of the time in which deficiencies could bo determined, assessed and collected against him. Had he so agreed the Commissioner would have had sufficient additional time in which to audit the petitioner’s return, redetermine his tax liability and assert a deficiency, but his own right to claim a refund of taxes overpaid or to the abatement of overassessments for such year would not have been preserved. In these circumstances it is not strange that the petitioner refused to consent to an extension that would have protected the Treasury but which included no provision for keeping alive his own rights that might be established by a further consideration of the controversy.
It is a fair inference from the record that the Commissioner accompanied his request for the consent to extension by an intimation that *1177if not agreed to it would be necessary to make an immediate jeopardy assessment of a very large deficiency. I believe that even if the consent had been signed by the petitioner the circumstances would have deprived it of the voluntary character contemplated by the law and in effect converted it into an agreement entered into under duress. The petitioner refused his consent and the Commissioner, no doubt believing such procedure necessary to protect the public interest and required by his official oath, within the remaining unexpired time made the jeopardy assessment which he believed was authorized by section 274 (d) of the Revenue Act of 1924. The effect of such an assessment was an indefinite extension of the statutory period of limitations provided for tolling tax claims made by the Government, not by the voluntary consent of the parties in writing but by the unilateral act of an administrative officer. Can it be argued that the Congress on the one hand provided that the statutory period for the determination of tax liability should be extended only by the voluntary consent of the parties and on the other hand clothed one of the parties with discretion to completely abrogate the statute without the consent of the other?
The only basis upon which such an interpretation of the law can be defended is that there was jeopardy. What was in jeopardy and what was the jeopardy? The law says “If the Commissioner believes that the assessment or collection of a deficiency will be jeopardized by delay such deficiency shall be immediately assessed * * Admittedly there had been no immediate reconsideration of the pending controversies. The Commissioner or his agents had repeatedly acquiesced in and acted on the so-called Roper valuation of the stock here involved. Mr. Blair did not know, and so stated, whether there would be any further tax liability against the petitioner disclosed by the proposed reinvestigation. No deficiency based upon a study of the evidence and the law had been determined. How could something not known and that possibly did not exist be in jeopardy? Personally, I am strongly of the opinion that Congress never intended that the authority it vested in the Commissioner to make so-called jeopardy assessments should be used to deprive taxpayers of their right to have tax controversies terminated by a statutory period of limitations, without their voluntary consent to such extension. To my mind the statute puts the Government as well as the taxpayer on notice that deficiencies must be finally determined within the five-year period. It is only because this practice has long been followed by the Commissioner and has not been taken from him. by Congress in any of the taxing statutes enacted since it was adopted and because I do not know upon what facts the Commissioner decided that there was jeopardy that I reluctantly concede that the jeopardy assessment constituted a legal reopening of the controversy in question and prolonged its life and justiciability beyond the expiration of the statutory period of limitation.
*1178I am convinced that the evidence amply sustains the valuation made by Roper. On the evidence I do not feel that we should go further than to adopt such valuation as our own. I believe that the only logical disposition of this controversy that we are called on to make, is to find that the stock of this petitioner now in controversy had a value at March 1, 1913, of $20,686,761.20. The transaction out of which this proceeding arises was not a simple business deal between this petitioner and the other minority stockholders on the one side and Ford on the other. It was well known that the stock had greatly increased in value between the basic date and the beginning of negotiations for its sale. Under the law in the event of a sale, that increase became income to the sellers and taxable to them by the Government in the taxable year in which the sales price' was received In this situation the Government, through its taxing officer, the Commissioner of Internal Revenue, is a party in interest or at least a party interested in the transaction. That the Government always has power, within the law, to act in the protection of its financial interests will be conceded by all, and is in fact the basis for the assessment of the alleged deficiency here in controversy.
The sale could not be made without the participation of the Government in the negotiations to the extent of determining the basis for the taxation of the profits which it was known would flow from the transaction. Therefore it was essential to ask the Commissioner to determine the value of the stock at the basic date and in the exercise of his discretion he complied.with that request. I believe that section 321, Revised Statutes, 13 Stat. at Large 233, confers ample authority on the Commissioner to do the very thing which is designated in the majority opinion as a wholly gratuitous act, neither prescribed, authorized nor required as a duty. The law says that the Commissioner shall have general superintendence of the assessment and collection of all duties and taxes now or hereafter imposed by any law providing for internal revenue. Except as to administrative details and procedure there is no attempt here nor in any other section of the revenue laws to impose specific dxities on the Commissioner. The effect of the statute cited is to authorize him to have general superintendence over the whole field of Federal internal taxation.
Clothed as he is with the broad general powers conferred by the-law, it is clear that the Commissioner need not wait for specific cases after returns are made and controversies have arisen for occasion to exercise his authority. In H. F. Kerr, 5 B. T. A. 1073, this Board neither condemned nor invidioxisly characterized a far greater exercise of discretion by the Commissioner and a far more liberal interpretation of the law than is involved in the Roper valuation of the Ford stock. With that decision in our records, unreversed and unchallenged, we’can not consistently say that Roper’s act was “ a voluntary, gratuitous act, outside the scope of the Commissioner’s official duty.” In any event, I can not agree to any such characterization.
*1179After Roper had made his determination of value and communicated his findings to the owners of the stock, the sale was made and in due course the taxable gain was determined and the tax computed and paid. I would not say that Roper was a party to a binding contract of which his valuation was one of the ternas, or that he had authority to make a contract binding on his successors in office, but it must be remembered that whatever he did in this matter was not personal to him, but was the official act of the United States of America, working through an officer clothed by law with ample authority to supervise the whole field of internal revenue taxation. Whether binding in a contractual sense or not, the owners of the stock relied on the Roper valuation because it was an act of the Government, made the sale and paid large taxes that the revenues would not have received had the sale been defeated by a valuation or by any uncertainty as to valuation.
I can not subscribe to the theory that moral considerations are not within the domain of the judgment of this Board and of all governmental agencies. Such a doctrine has wrecked many nations in the past and if embodied in administrative procedure will destroy this republic and all other states that adopt it. Moral obligation should be as binding on the government as on its humblest citizen. There is no charge, nor the slightest evidence that all the interested parties did not act in good faith. No improper motives are alleged, indicated, or suggested by the record. Therefore I believe that entirely aside from any consideration of the contractual phases of the Roper valuation, the Government is under inescapable moral obligation to adopt it as the basis for the settlement of this controversy. There was an understanding, to which the Government was a party, that the valuation made by Roper should be the basis of a tax to be paid to the Treasury. The other parties complied with the terms of that understanding. I believe that the public interest requires that the Government stand by its valuation, which the evidence convinces me is as nearly correct as any jury result that we might be able to base on the facts that we have found. It is fortunate, of course, that the evidence sustains this result. This is no mere coincidence but is an indication that the Roper valuation was carefully worked out on the basis of facts which we now accept as conclusive evidence that the result reached was in fact quite conservative. I do not feel that the evidence justifies any higher valuation than was originally determined by the Commissioner and am convinced that our decision here will be much more consonant with just conceptions of public policy if it recognizes the moral obligation of the Treasury to accept as conclusive the acts of its agents when it is established, as in this proceeding, that there is neither fraud nor gross error either in the method employed or results reached.