(dissenting):
The Tax Court’s equitable allocation cannot be justified by either the law or facts of this case. In approving this Solomonic approach, the majority tacitly exacerbates the difficulties inherent in the use of alternative inconsistent deficiency assessments and fails to credit the two credible items of proof adduced at trial. I respectfully dissent.
The majority correctly states that in the ordinary case the Commissioner’s assessments are presumed valid until shown by the taxpayer to be erroneous or arbitrary. Likewise it cannot be seriously questioned that the Commissioner has the right to make inconsistent assessments in order to protect the fisc and insure against a potential “whipsaw” effect.1 Estate of Goodall v. Commissioner, 391 F.2d 775 (8th Cir.), cert. denied, 393 U.S. 829, 89 S.Ct. 96, 21 L.Ed.2d 100 (1968); Malat v. Commissioner of Internal Revenue, 302 F.2d 700 (9th Cir.), cert. denied, 371 U.S. 934, 83 S.Ct. 308, 9 L.Ed.2d 271 (1962).
What provokes me to dissent is that the majority applies these two principles in tandem to conclude that the Commissioner was entitled to recover the full amount against both taxpayers and that the Tax Court’s amelioratory action in reducing the liability by half cannot be complained of on appeal. By consolidating the cases, the Commissioner gained protection against any deleterious effects the taxpayers’ conflicting stories might have on his ability to collect the full amount from someone. With all the parties before it, the Tax Court could insure that the public would not lose tax revenues and that the Commissioner would not receive a windfall by recovering tax on the same income from two taxpayers. As the Commissioner readily concedes, the inconsistent assessments are merely a mechanism to guard against loss, not a procedural device to permit double recovery.
This court has never had occasion to decide the legal effect that should be accorded inconsistent assessments in a consolidated proceeding such as this. However, several cases have enunciated the rule that an arbitrary assessment is stripped of presumed validity. See, e. g., Lucia v. United States, 474 F.2d 565 (5th Cir. 1973) (en banc); Bar L. Ranch, Inc. v. Phinney, 426 F.2d 995 (5th Cir. 1970). In one sense, the assessments against Ash and Cannon are not arbitrary because the Commissioner had a factual basis for believing' that either one or the other had received gambling income. However, the presumption clearly becomes irrational and arbitrary the moment it is extended to both taxpayers simultaneously in a consolidated proceeding. Cf. Tot v. United States, 319 U.S. 463, 63 S.Ct. 1241, 87 L.Ed. 1519 (1943); Mobile, Jackson & Kansas RR Co. v. Turnipseed, 219 U.S. 35, 31 S.Ct. 136, 55 L.Ed. 78 (1910). At most, the Commissioner should be treated as a stakeholder and the dual assessments should mean only that the Commissioner’s either- or determination is entitled to presumptive validity by the Tax Court to the extent of asserting that one or the other or both of the taxpayers together owe a single full recovery. Anything more is per se arbitrary and unfair.
If this were a true “whipsaw” situation involving separate proceedings against competing taxpayers where no credible evidence bearing on allocation could be ascertained, we would be faced with a different and more difficult question. It is not. Even conceding that neither taxpayer’s whole story was worthy of belief, the court had before it reliable proof constituting a rational basis for the distribution of liability. That proof consisted of clear documen*963tation that Ash received the $64,680 and Cannon’s admission that $12,000 of that sum was wagered with him.2
The Tax Court itself decided and the majority agrees, as I do, that the remaining proof was unworthy of belief. Thus there is simply no credible basis for assuming that half of the total was transferred to Cannon, or that the remaining half was retained by Ash. My concern with affirming their decision to “divide the baby” is that I cannot discern any good reason for disregarding the probative evidence which was developed in favor of an “equitable” solution which has no factual foundation. With deference, I suggest that the proper resolution of this controversy would be to remand to the Tax Court for an allocation of $12,000 to Cannon and $52,680 to Ash.
. “A whipsaw situation occurs in the tax field ' when two different taxpayers take positions with respect to a particular transaction which are so inconsistent with each other that only one should logically succeed — and yet, because of jurisdictional or procedural reasons, first one and then the other prevails against the Government.” Remarks by Phillip R. Miller at Court of Claims Judicial Conference, October 14, 1971, on Whipsaw Problems in Tax Cases, 25 The Tax Lawyer 193 (1972).
. I agree that Cannon’s asserted defenses of payment of the tax and a bribe expense to discount his liability are both totally meritless.