(dissenting).
With deference to the opinion of the majority, I respectfully dissent. I consider this to be necessary because the Tax Court, in its opinion, incorrectly assumes that we have departed from the holding made by us in the Barbour case.1 The court’s opinion does nothing to dispel this erroneous impression.
The facts in issue here, with respect to the taxability to the widow of one-half the income received during administration of the independent executors of her husband’s estate, no part of which was received by her during the tax years in question, are identical with the facts in the Barbour case. In fact, with commendable frankness, the Commissioner’s brief greatly simplifies the issue by stating: “This court in the Henderson and Blackburn cases found factual differences from the Barbour case sufficient to justify a different result.2 In the pres*318ent cases, however, we can find no significant factual difference from that case and do not deny its applicability, if it is to be followed.” (Emphasis supplied.) The Commissioner then asks us to reconsider the Barbour case.
The only factual difference between the Barbour case and the Sneed case that the writer of this dissent has been able to find is that here the taxpayer, the widow, returned as her income one-half of the income received by the executors from the community. In the Barbour case she did not so report it. Under our scheme of income taxation the legal liability for the payment of a tax is in no way affected by the erroneous reporting of it by the taxpayer. The question presented in both of these cases is identical. Did the executors, as fiduciaries under the mandate of Sections 161(a), 161(a) (3), 161(b), 162(c), owe this tax or were they permitted under Section 162(c) to deduct one-half of the income received by them and did it then become the duty of the widow to return it and pay tax on it? The issue is squarely presented and not only are these taxpayers, but so also is the Commissioner, entitled to know whose is the tax liability. In the Barbour case we clearly and unequivocally held that it is the liability of the fiduciary and not the liability of the surviving widow.3 In the case of Blackburn’s Estate v. Commissioner, 5 Cir., 180 F.2d 952, we held that the rule is different where the wife dies, because under the applicable state law the surviving husband is not deprived of his right to receive his half of the income while he administers his wife’s estate. In the case of Henderson’s Estate v. Commissioner, 5 Cir., 155 F.2d 310, a somewhat similar question arose under the Louisiana community property law and we rejected the suggestion that all community property statutes be treated as if they were identical.4
It is clear, therefore, that the law announced in the Barbour case has not been modified. It seems to me that we should, therefore, either follow its teaching or expressly overrule it, in deference to the right of taxpayer in this important area to have as much certainty as possible in the reporting of income from community property during administration. This is obviously neither a theoretical nor a sterile inquiry. As our whole scheme of federal income taxation is based on graduated tax rates, it is of extreme importance for both taxpayer and Commissioner to know whether the particular income here dealt with is to *319be added to the wife’s other independent personal income and the tax to be computed on that, or whether it is to be combined with the other half of the community income and reported as a single item of income by the fiduciaries. Doubtless either treatment would sometimes benefit the taxpaying group and sometimes benefit the Treasury. Neither party should be left to its option to treat this income either one way or another arbitrarily to favor its own interest according to the particular amounts involved.
As I read the majority opinion, the basic question is not answered. The court simply says in effect that since the tax is owed by either the fiduciary or the widow, and since the widow returned it and paid it, the Tax Court did not err in holding that the widow owed it. But the widow and the estate, as well as the Commissioner, are all here before us asking us to determine which one of them does owe it. I think it is the law in this circuit, under the Barbour decision, that the fiduciaries owe it; they were required to return it and they were not entitled to deduct one-half of the income under the provisions of § 162(c) since it is admitted that none of the income was “properly paid or credited during such year to” the widow.
I think furthermore that the Barbour decision was right under the clear line of authority in the Texas cases. The scheme of federal income taxation is admittedly based on the proposition that income is to be taxed to its owner. Helvering v. Horst, 311 U.S. 112, 61 S.Ct. 144, 85 L.Ed. 75; Lucas v. Earl, 281 U.S. 111, 50 S.Ct. 241, 74 L.Ed. 731. There is no contention here that the widow was the owner of this income until the administration was completed. No logical reason is perceived as to why the usual rule of taxing the income to the one who receives it should be ignored.
I think the decision of the Tax Court on the petition for review, filed on behalf of Brad Love Sneed (No. 14855) should be reversed as to that part relating to the taxability to her of one-half of the community income for the years 1940 and 1941, and that conversely the judgment in the Commissioner’s petition for review (No. 14871) should also be reversed as to the exclusion of this income from the fiduciaries’ tax liability. This case should be remanded to the Tax Court to determine what fiduciary tax entity is liable for the reporting and payment of the tax on income received from the widow’s one-half of the community income, under the principle announced by us in Barbour v. Commissioner, supra, and Henderson’s Estate v. Commissioner, supra.5
. The Tax Court, in No. 14855, quoted from the decision in No. 14871 as follows:
“It would now appear that the Fifth Circuit is holding, just as this tribunal had held prior to the Barbour ease, that one-half of the income from community property continues to be taxable to the surviving spouse, and the estate of the deceased spouse is taxable only on one-half during the period of administration of that estate, regardless of which spouse survives. * * * We hold that the petitioner in this case, the estate of the deceased husband, is taxable on only one-half of the community income for the taxable periods involved herein, believing not only that we are following the latest decisions of the Court of Appeals for the Fifth Circuit but, also, that the taxpayer’s position is sound.” The Tax Court is clearly without basis for its implication that the rule of the Barbour case is not still the law in this circuit. We have said it is, as clearly as language will permit, as recently as Blackburn’s Estate v. Commissioner, 5 Cir., 180 F.2d 952.
. For the factual difference between Blackburn and Barbour see the opinion of Chief Judge Hutcheson in Blackburn’s Estate v. Commissioner of Internal Revenue, 5 Cir., 180 F.2d 952, 953: “There (in the Barbour case) the husband, the manager of the community, had died, and his independent executors were in charge of, and were managing, the whole of the community estate, ‘the executors retaining possession and control of the wife’s undivided one-half community property and managing and operating the entire estate as a unit’.
“All that was there presented for decision, all that was decided, was whether, the whole property being in the hands of the husband’s executors for administration, the claim of the commissioner, that the surviving wife had come into the re*318ceipt of one-half of the Income so as to be taxable upon it, could be sustained. *****
“Here, unlike in the Barbour case, it is the wife who is dead, and the husband who is administering the property. In such a situation, as carefully stated in Lovejoy’s case [Tex.Com.App., 63 S.W. 2d 1009], supra, there is no passage of control or management to her executors or administrators. The Supreme Court of Texas has repeatedly held that in such case the husband’s power and control, with respect to the common property are undiminished by the wife’s death.”
. Barbour v. Commissioner, 5 Cir., 89 F. 2d 474, 476:
“It is settled law that income received by the administrator of an estate, while the administration is in progress, must be returned and taxes paid on it by the administrator as income'of the estate, and not by the person ultimately entitled to it. Kuldell v. Commissioner, [5 Cir.], 69 F.2d 739. If this were the case of an administration in court of an intestate, or with will annexed, it would seem, upon the authority of that case and the Texas authorities governing such administration, that it must be held that Mrs. Barbour had not received this profit as income so as to make it taxable to her. Lovejoy v. Cockrell leaves in no doubt we think that an independent executor stands in the same ease, and that income received by him while administering the property as executor of the husband and statutory trustee, is not received by or taxable to the surviving member of the community.”
. Henderson’s Estate v. Commissioner, 5 Cir., 155 F.2d 310, 312:
“There is no use in comparing or distinguishing decisions dealing with the statutory laws of other community-property states; both the Supreme Courts of Louisiana and of the United States have dealt explicitly with the character of the wife’s community interest in Louisiana.”
. See the last paragraph of Judge Holmes’ opinion 155 F.2d 310, 315.