dissenting.
Within the meaning of § 202 (a) of the Revenue Act of 1921 the trustee acquired the trust res by gift. But reference must be had to §§ 206 and 219 to ascertain the rate of tax to be applied to the gain on the sale. These are distinct sections, found not in juxtaposition with 202, but in portions of the Act dealing with unrelated topics; the one with “ Capital Gains ” and the other with “Estates and Trusts.” Confessedly the first grants an exemption from the normal rate of tax and allows payment at a lower rate only to a “ taxpayer ” who realizes gain from the sale of a capital asset which he (the “ taxpayer ”) has held for profit or investment for over two years. The second, in words too plain to be misunderstood, designates the trustee of a trust such as the one here in question as the taxpayer. The unambiguous mandate of the Act should be enforced.
Under the recognized rules of construction we should give the words of the statute their ordinary and common meaning. Old Colony R. Co. v. Commissioner, 284 U.S. 552, 560. If the language be plain there is nothing to construe. Hamilton v. Rathbone, 175 U.S. 414, 419; Thompson v. United States, 246 U.S. 547, 551. We cannot enact a law under the pretense of construing one. Heiner v. Donnan, 285 U.S. 312, 331.
*470Nor can we avoid the plain meaning of a statute by construction, so-called, because we think as written it begets “hard and objectionable or absurd consequences, which probably were not within the contemplation ” of its framers. Crooks v. Harrelson, 282 U.S. 55. Where, as in the present case, the provision is one granting an exemption from the full rate of taxation, doubts must be resolved against the taxpayer. Heiner v. Colonial Trust Co., 275 U.S. 232, 235.
For twelve years after the passage of the Act the administrative rulings uniformly denied the benefit of the capital gains sections of the Act of 1921 to a donee who had not himself held the property over two years. These are entitled to respectful consideration' and will not be disregarded except for weighty reasons. Fawcus Machine Co. v. United States, 282 U.S. 375, 378. Two Courts of Appeals have decided against the trustee’s contention. In the face of this unbroken agreement of the executive and judicial departments, we should be slow to announce a contrary view.
The reason assigned for ignoring the plain import of the terms used in §§ 206 and 219 is that the provisions, read in their ordinary sense, bring about a result thought to be contradictory of the paramount purpose to permit the payment of tax on capital gains at a reduced rate. The suggestion is that Congress inadvertently omitted a provision whereby the tacking of the tenures of donor and donee would be allowed for finding the rate, since it has required such tacking for ascertaining the base. It is said that it would be absurd to attribute ,any other intent to the framers of the law. But there is no necessary inconsistency in the two provisions, literally applied. Plainly the requirement that a donee should calculate his gain on the value paid by his donor was to prevent evasions, through transfer and immediate sale by the donee, who would claim the value at the date of the gift *471as the base and assert that he had made no gain. There is no incongruity in declaring that in the case of a gift the donee shall pay tax at the full rate unless he shall have held the property a full two years. Congress might well think it proper thus to condition the privilege of a reduced rate to one who paid nothing for the property.
Assuming, however, for the sake of argument, that there is a logical inconsistency between the prescribed method for arriving at the base and that for ascertaining the rate, it is the province of Congress alone to remove it. There is no abstract justice in any system of taxation. Nothing could involve more dangerous consequences, than that the courts should rewrite plain provisions of a tax act in order to bring them into harmony with a supposed general policy. Such a principle of decision would embark us on a sea of construction whose bounds it is difficult to envisage. Every revenue act embodies policies which conflict to some extent with those elsewhere in the Act evinced. Income tax legislation is a continuous series of corrections and amendments in an effort to make the policy of taxation more congruous.
The very sections extending the relief of a reduced rate on capital gains, teach us how inconsistently the principle has been followed and how impossible and improper it would be for a court to rewrite the sections in an effort to make them logically consistent.
The Act omitted to impose any limitation of 12% per cent, on capital net losses. If, therefore, a taxpayer had no capital gains during the year, he could deduct his entire capital losses from his ordinary income.1 This omission was cured by the Revenue Act of 1926, which reduced the permissible deduction from the tax on net income to 12% per cent, of capital net loss.2 The amend*472ment of 1926, in turn, leaves a glaring inconsistency, for though the taxpayer may have no actual income, yet as a result of the application of the mandatory 12y2 per cent, rate to capital net losses, he may have to pay a tax.3
Under the Act of 1921 capital assets were so defined as to exclude property held for personal use or consumption of the taxpayer or his family.4 By the Revenue Act of 1924 and later Acts the exception was omitted.5 It results that whereas the taxpayer may now include such property as the residence occupied by him, his automobiles, his jewels, and similar items, in respect to gains, he may not include them with respect to losses, for no deduction whatever for losses is permitted in the case of property held for personal use or consumption.6
Instances might be multiplied of logical inconsistency in the incidence of the capital gain or loss provisions; but this court is not at liberty, because it thinks the provisions inconsistent or illogical, to rewrite them in order to bring them into harmony with its views as to the underlying purpose of Congress.
The sections in question 'were reenacted without change in the Revenue Act of 1924. If, as is suggested, omission of a provision permitting one circumstanced as this trustee to have the benefit of the reduced rate in virtue of his donor’s as well as his own tenure was .an inad*473vertence as respects the Act of 1921, it is curious that the same inadvertence occurred in the enactment of the 1924 Act, despite the fact that the rulings of the department had been against the trustee’s present contention. The section was amended by the Act of 1926 so as to allow the donee to tack his donor’s tenure to make up the required two years.7 In reporting it the committees of the Senate and House both referred to this as an amendment of the law. The change was recommended in connection with two other alterations of language, both intended to confirm rulings of the department. In referring to this particular alteration the committees said:
“ The same question arises in the case of property received by gift after December 31, 1920. The amendment provides that the period in which the property was held by the donor shall be added to the period in which the property was held by the donee in determining whether or not the property so received falls within the capital gain or loss section.”8
Certainly this language is far from compelling the conclusion pressed upon us, that the amendment was merely a confirmation of the understanding of Congress as to the effect of the earlier Acts.
The judgment should be reversed and the cause remanded for the calculation of the tax to the trustee at ordinary rates for the reason that it did not hold the capital assets for two years, so as to entitle it to the 12% per cent. rate.
Mr. Justice Brandéis and Mr. Justice Stone concur in this opinion.202 (a) (2); § 206 (a) (2); § 206 (b); 42 Stat. 229, 232-3.
§208 (c), 44 Stat. 20.
See § 208 (c), 44 Stat. 20. As stated in Regulations 69, Art. 1654, by 208 (b), if the taxpayer has a capital net gain he has an election whether to return it under the capital gains and losses provisions; but the limitation with respect to a capital net loss provided in 208 (c) will be applied irrespective of the taxpayer’s election.
§ 206 (a) (6), 42 Stat. 233.
§ 208 (a) (8), 43 Stat. 263; Act of 1926, § 208 (a) (8), 44 Stat. 19; Act of 1928, § 101 (a) (8), 45 Stat. 811.
Revenue Act of 1926, § 208 (a) (2), 44 Stat. 19; Regulations 69, Art. 1651; Art. 141; Cumulative Bulletin V-I, 61.
§ 208 (a) (8), 44 Stat. 19.
House Rep. No. 1 and Senate Rep. No. 52, 69th Cong., 1st Session.