(dissenting).
I am unable to concur in the result. The evidence as reviewed in the opinion clearly demonstrates that the depreciated costs of machinery and inventory as carried on the bankrupt’s books did not truly reflect value. It repels the unexpected conclusion and is in no wise contradicted. The presumption of accuracy in the assessment disappears when it becomes apparent that the assessing officers but accepted the return of the bankrupt and made no appraisal of their own as to value. These returns, however they may bind the bankrupt corporation, do not foreclose the trustee, since, as the opinion rightly holds, there is no estoppel. Moreover, the evidence is not merely opinion evidence, but in respect to obsolescence, fire, single purpose material, and actual sales, is factual. It is in important respects corroborated by unimpeached witnesses who were not connected with the bankrupt company. Not only should weight be given to the findings of the referee who saw and heard the witnesses, but the generally accepted rule that concurrent findings of referee and court should not be set aside except for clear demonstration of error, should be applied. I see no reason for setting aside this salutary and self-imposed check upon arbitrary judgments of reviewing courts. We have in the past consistently adhered to it.
The truism that prompt payment of taxes is important to governments requires no demonstration. It has been recognized since governments first were organized. Nor should it be necessary to explain that a bankruptcy trustee is charged with the duty on behalf of creditors to protect the bankrupt estate from unlawful or unreasonable claims, even as against the government, a duty which in his trust capacity and as an arm of the court he is without power to avoid. There is no persuasiveness, therefore, as an aid to decision, in the inescapable and wholly inexplicable implication of the opinion that the trustee’s challenge to the taxes is in any respect a resort to the Bankruptcy Court as a haven for tax dodgers, since no one other than the trustee can or does contest the tax. This gratuitous condemnation of the trustee will add little to the zeal of bankruptcy trustees for safeguarding estates against exactions reasonably conceived to be unwarranted.
The order of the District Court, which is what we review, should be affirmed.