dissenting in part:
I concur with the majority in holding that section 108 is not applicable to the tax imposed by section 102.
I dissent, however, from the conclusion that plaintiff is entitled to an excess profits income deduction in determining “section 102 net income”, based on his total 1945-1946 fiscal *411year income. I cannot agree that “income subject to excess profits tax” means anything more than “income in fact subject to excess profits tax”.
The manifest purpose of Congress in creating the excess profits income deduction in section 102 (d) (1) (D) was to prevent taxation by section 102 of the same income which it had already subjected to excess profits tax under section 710. Section 102 (d) (1) (D) provided for a deduction of “income subject to excess profits tax”, here equivalent to “adjusted excess profits net income”, in determining section 102 net income. In determining the amount of the deduction reference was made ultimately to section 710, which imposed the excess profits tax, and which provided, inter alia, as follows: “adjusted excess profits net income means excess profits net income (as defined in section 711)” less certain specific exemptions. (Section 710 (b))
For calendar year taxpayers, however, Congress repealed the excess profits tax levied by section 710, effective December 31,1945. (Section 122 of the Revenue Act of 1945). It then sought to restore equality of tax treatment to fiscal year taxpayers whose fiscal year began in 1945 and ended in 1946, i. e., no excess profits tax was to be levied for calendar year taxpayers beginning January 1, 1946, and an equivalent treatment was to be afforded fiscal year taxpayers. Congress sought to achieve this result by a formula set up in section 710 (a) (7), as follows:
(7) Taxable years beginning in 1945 and ending in 1946. — In the case of a taxable year beginning in 1945 and ending in 1946, the tax shall be an amount equal to that portion of a tentative tax, computed as if the law applicable to taxable years beginning on January 1, 1945, were applicable to such taxable year, which the number of days in such taxable year prior to January 1, 1946, bears to the total number of days in such taxable year.
The repeal of the excess profits tax also had the effect of abolishing the excess profits income deduction provided in section 102 (d) (1) (D) as to calendar year taxpayers for the year 1946. This of course was entirely consistent with the purpose of section 102 to prevent double taxation.
*412But the plaintiff here argues that that repeal did not preclude fiscal year taxpayers from including the 1946 portion of their income in figuring their excess profits income deduction for the 1945-1946 fiscal year section 102 tax. In other words plaintiff is claiming an excess profits deduction based on a 12 month period while paying an excess profits tax based on only a two month period. Under plaintiff’s contention fiscal year taxpayers would receive a very considerable advantage over calendar year taxpayers solely by virtue of a provision which sought merely to restore fiscal year taxpayers to a position of equality with calendar year taxpayers. But not only would plaintiff’s contention result in a discriminatory deduction, it would also result in a disregard of the tax structure which Congress sought to establish in section 102.
The tax deduction provided in' section 102 was granted only because of the existence of the tax imposed by section 710, and it must necessarily be construed with reference to that tax. It is clear that the underlying effect of section 710 (a) (7) was to tax plaintiff only on the 1945 portion of his full 1945-1946 fiscal year income. The formula set up by section 710 (a) (7) involved the computation of a “tentative tax” from the full 12 month adjusted excess profits net income. This tentative tax was then reduced by a fraction depending on the proportion that the 1945 period of the 1945-1946 fiscal year bore to the full year, in order to arrive at the actual excess profits tax. The formula could with equal logic have applied that fraction to the 12 month adjusted excess profits net income. I cannot see that Congress intended by the particular juxtaposition of the factors in the section 710 (a) (7) formula to so warp the structure it had established in section 102 as to allow the excess profits deduction to be based on a 12 month period, while assessing the excess profits tax based on a two month period. For that matter, within the meaning of the section 102 deduction, the full 12 month adjusted excess profits net income was just as tentative as the so-called tentative tax figured in the section 710 (a) (7) formula. The actual deduction under section 102 should have been determined upon the same basis as the actual tax for which the deduction was created.
*413We must bear in mind the purpose of the section 102 deduction to prevent taxation by section 102 of the same income as was taxed by section 710, and also the intent of section 710 (a) (7) to treat fiscal year taxpayers substantially the same as those as to whom the excess profits tax had been repealed as of December 31, 1945, and who therefore had no adjusted excess profits net income upon which to claim a section 102 deduction for 1946. Looking then at the substance of the law it seems to me that plaintiff’s contention should be rejected, since (1) it would not merely prevent double taxation but would instead permit an amount equivalent to the 1946 portion of the income to escape completely taxation under either section. 102 or section 710, and (2) it would not merely restore equality of treatment to fiscal year taxpayers, but would in effect give fiscal year taxpayers a discriminatory advantage of considerable proportion over their calendar year counterparts.
While it is true that “in a sense” the adjusted excess profits net income within the meaning of section 710 (a) (7) was based on the full 1945-1946 fiscal year income, that was only in a very tentative sense, and not at all in the sense intended by section 102. I would not allow the purely mechanical interpretation of sections 102 and 710 advanced by plaintiff to circumvent the substance and purpose of those sections. All of the applicable provisions of the Code should be construed in their entirety, and not as individual isolated sections. When so considered the general design and purpose becomes manifest.
Congress intended in section 102 to allow a deduction for that income upon which the excess profits tax was based; in section 710 (a) (7) the excess profits tax was based on the 1945 portion of the 1945-1946 fiscal year income; and I would therefore hold that plaintiff’s section 102 excess profits deduction should likewise be based on the 1945 portion of his; 1945-1946 fiscal year income.
Plaintiff’s excess profits income deduction under section. 102 (d) (1) (D) for his 1945-1946 section 102 tax should! therefore be limited to two-twelfths of his full 12 month, adjusted excess profits net income, which is the same ration as the actual two month period in 1945 upon which his excess. *414profits tax is based bears to the full 1945-1946 fiscal year. Plaintiff’s recovery for any overpayments on his 1945-1946 tax liability should be limited accordingly.1
I concur in full with the majority with respect to recovery by plaintiff for the fiscal year 1943-1944.
WhitakeR, Judge, concurs in the foregoing opinion.Calculated on this basis the plaintiff’s recovery on this item would be slightly more than $2,000, plus interest as provided by law.