(dissenting).
I dissent. I adhere to the view expressed by me in the dissenting opinion in Ambassador Petroleum Co. v. Commissioner of Internal Revenue, 9 Cir., 81 F.2d 474, 483. Notwithstanding that, in view of the majority decision in that case, I would *976concur in the result in the case at bar on the theory that the language of section 114 (b) 3, of the Revenue Act of 1928, 26 U.S. C.A. § 114 note, is not sufficiently clear to justify a reconsideration of the decision in Ambassador Petroleum Co. v. Com’r, supra, and that, therefore, the parties should be left to their remedy in the Supreme Court. If I agreed with my brethren that the meaning of the statute involved was entirely clear, I would also agree with their conclusion that the new rule of the Commissioner under the Revenue Act of 1928 could not change the plain language of the statute. However, the statute expressly requires the Commissioner to adopt rules for the determination of the depletion allowance. He has done so. Under those rules so adopted the additional tax determined by the Commissioner accrued. To uphold the tax under the new rule is not inconsistent with the decision of the court in Ambassador Petroleum Co. v. Com’r, supra. Because of the changed situation it is not necessary to overrule vthat decision in order to reverse the decision of the Board of Tax Appeals herein.