dissenting:
I think the provisions of the Internal Eevenue Code clearly authorized the executive officials to limit the amount of rapid amortization deduction.
Section 124 (f) (1) of the Code is as follows:
(f) Determination of adjusted basis of emergency facility.
In determining, for the purposes of subsection (a) of subsection (h), the adjusted basis of an emergency facility—
(1) There shall be included only so much of the amount otherwise constituting such adjusted basis as is properly attributable to such construction, reconstruction, erection, installation, or acquisition after December 31, 1939, as either the Secretary of War or the Secretary of the Navy has certified as necessary in the interest of national defense during the emergency period, which certification shall be under such regulations as may be prescribed from time to time by the Secretary of War and the Secretary of the Navy, with the approval of the President. [26 U. S. C. 124, 1952 Ed.]
Section 124 (f) (3) (C) of the Code provides specifically that no amortization deduction shall be allowed in respect of any emergency facility for any taxable year “unless a certificate in respect thereof under paragraph (1) shall have been made * *
Since the statute clearly authorizes the limitation, and the certificate actually limits the amortization to the 35 percent and that amount has been allowed, I would dismiss the *98petition. United States Graphite Co. v. Harriman, 71 F. Supp. 944; United States Graphite Co. v. Sawyer, 176 F. 2d 868 (certiorari denied).
In accordance with the foregoing opinion and on a stipulation by the parties showing the amount due thereunder, judgment for the plaintiff was entered March 30, 1955, as follows:
Now, therefore, it is ordered this thirtieth day of March 1955, that judgment be and hereby is entered for plaintiff in the following sums together with interest on each as provided by law:
1943 — Two million, sixty-five thousand seven hundred sixty-seven dollars and twenty-five cents ($2,-065,767.25) of excess profits,
1944 — One million, two hundred fifty-one thousand six hundred eighty-seven dollars and seventy-one cents ($1,251,687.71) of excess profits,
1945 — Two million, five hundred sixty-seven thousand nine hundred thirty-three dollars and twenty-six cents ($2,567,933.26) of income taxes.