dissenting.
I disagree with the conclusion reached by the majority opinion. The majority opinion concludes that the district court’s decision must be reversed because the taxpayer’s reported taxable income for Federal tax purposes is the starting point for State tax purposes; that the starting point for 1977 is correct; and that the State Tax Commissioner has promulgated no rules concerning this matter. If the issue were that narrow I might agree with the majority opinion. However, a review of the record reveals that originally the Commissioner disallowed a North Dakota refund for the years 1973 and 1974 resulting from a carryback of a net operating loss because the Commissioner offset the balance due to the taxpayer by asserting that the Federal refund received in 1977 as a result of that carryback on the Federal return was taxable in 1973 and 1974. After an informal conference between the taxpayer and the Tax Commissioner, the Commissioner issued a refund for the years 1973 and 1974 but assessed an additional tax for the year 1977, the year the Federal tax refund was received by the taxpayer. It is this assessment which led to this appeal. If we are to give so much credence to the Federal taxable income as the basis for computing the State tax, then I submit the Commissioner was right in the first instance — the refund for the years 1973 and 1974 should have been disallowed because it was apparent the Federal taxable income for those years was not correct. The net operating loss carryback on the Federal return made the original Federal taxable income figure incorrect as reported on the State return.
In Erdle v. Dorgan, 300 N.W.2d 834 (N.D.1980), I wrote a concurring opinion indicating that if we were reviewing the issues there raised for the first time, I might well *775agree with Justice Paulson’s dissent in Lanterman v. Dorgan, 255 N.W.2d 891 (N.D.1977). However, because the court had previously considered and decided those issues and the Legislature had not altered the statutory provisions I agreed with the majority opinion in Erdle. It appears to me the majority opinion is now exalting beyond reason the conclusion that for North Dakota tax purposes the Federal taxable income is the starting point for the preparation of the State return and only those adjustments expressly provided by statute may be made to increase or decrease Federal taxable income on the State tax return. It is apparent and undenied by Running’s counsel that the conclusion reached in the majority opinion results in a windfall to Running. That windfall is at the expense of the other taxpayers of this State.
If we are to apply so rigidly the previous conclusions of this court, I would reverse the decision of the Tax Commissioner and the district court but remand with directions that the refund claimed by Running from the State for the years 1973 and 1974 not be allowed because, as a result of subsequent amendments to his Federal tax return, the Federal taxable income reported on his North Dakota tax return for those years was incorrect.