(dissenting).
Had section 278 (c) of the Act of 1926 (26 USCA § 1060 note) stood alone, the waiver would have been good, though made after the period for assessment had expired. Burnet v. Railway Equipment Co., 282 U. S. 295, 51 S. Ct. 137, 75 L. Ed. 349. That case concerned the Act of 1924, but section 278 (c) of that law was the same (26 USCA § 1060 note). Section 278 (e) of the Act of 1926 (26 USCA § 1062) did indeed provide that if an assessment were barred when the act took effect, no waiver should be valid if made thereafter; but section 278 (e) of the Act of 1924 (26' USCA § 1062 note) seems to me substantially the same. The court considered it in Burnet v. Railway Equipment Co., and necessarily decided that it did not control the interpretation of section 278 (e). The taxpayer’s position must therefore rest upon section 1106 (a) of the Act of 1926 (26 USCA § 1249 note) which extinguished the liability with the period of assessment; it argues, as I understand, that a waiver cannot revive a liability once extinguished. I do not see any but a formal distinction, but in any case section 612 of the Act of 1928 (45 Stat. 875) affected to repeal section 1106 (a) of 1926, retroactively; that is, Congress meant to change any rights and liabilities which had vested meanwhile, inte what they would have been, had section 1106 (a) never been included in the Act of 1926. If it had that power, the waiver was valid under section 278 (e).
The. taxpayer.answers that section 506 of the Act of 1928 which by subdivision (a) (26 USCA § 1060) amended section 278 (e) of the Act of 1926—though not retroactively— provided in subdivision e (26 USCA § 106*0 note) that all waivers should be good or bad, as they had been under the law when they were made; and since section 1106 (a) made the waiver bad when made, it remained so. But what was the law of 1926? Congress commanded that section 1106 (a) should be treated as though it had never been a part of it; and if it never had been, the premiss fails. Besides, section 506 (b) of the Act of 1928 (26 USCA § 1062a) added subdivision f to section 278 and ^validated any waiver made between May 29, 1928, when it took effect, and January 1, 1929. Are we to say that notwithstanding this, waivers between the enactment of the Act of 1926 and May 29, 1928, are invalid? That would be a very whimsical result. So I do not see that section 506 (e) (26 USCA § 1060 note) affects the situation at all.
That Congress had power to do all this, if it really meant to, I have no doubt. Graham & Foster v. Goodcell, 282 U. S. 409, 51 S. Ct. 186, 75 L. Ed. 415. The taxpayer had consented to an extension of the period, and is in as little position to complain that section 612 of the Act of 1928 revived his liability, as though it had merely tolled a bar to it. I cannot believe that the Constitution is concerned with sueh scholastic refinements. Having agreed to the extension, probably to avoid a- jeopardy assessment, it has no just grievance that the formal impediments to the realization of its purpose are cleared away. It has had its consideration, and is merely being held to its promise*. I think that the assessment was valid.