concurring:
I agree with the conclusion arrived at by the majority, but for a somewhat different reason.
Section 3772 (a) (2) of the Internal Revenue Code provides:
Time. — No such suit or proceeding shall be begun before the expiration of six months from the date of filing such claim unless the Commissioner renders a decision thereon within that time, nor after the expiration *239of two years from tbe date of mailing by registered mail by the Commissioner to the taxpayer of a notice of the disallowance of the part of the claim to which such suit or proceeding relates.
This prohibits the institution of a suit more than two years after the “mailing by registered mail by the Commissioner to the taxpayer of a notice of the disallowance of the part of the claim to which such suit or proceeding relates.” The claim was unquestionably disallowed; there was nothing tentative about the disallowance; it was just disallowed. It was not disallowed “for the present” or “without prejudice,” or “with the right to renew it,” or with any other qualification; it was just disallowed. And the notice of this action was mailed more than two years before this suit was instituted.
However, I think section 3772 (a) (2) clearly contemplated that the Commissioner should render a decision on the claim. It prohibited a suit before the expiration of six months after the claim was filed “unless the Commissioner renders a decision thereon within that time.” The letter of disallowance quoted in finding 16 indicates rather clearly that the disallowance was not based on the merit or demerit of the claim but on the inability of the Commissioner to decide it at the time, because the facts upon which a decision had to be grounded had not then been established. Clearly there had been no decision. There was a disallowance, but no decision to support the disallowance. There was no decision because a decision could not then be made.
I do not think the disallowance was tentative, but it lacked the basis contemplated by the Act, to wit, a decision on the rights of the taxpayers. I would say, therefore, that the disallowance was ineffective, that there has not been that disallowance contemplated by the statute.
I think, therefore, plaintiffs’ suit was filed in time.
In accordance with the above opinion, and upon a stipulation entered into by the parties and on plaintiff’s motion for judgment, it was ordered October 4, 1948, that judgment be entered for the plaintiff Norman W. Roe, as executor of the estate of Emma B. Johnson, in the sum of $37,071.50, with interest as provided by law.