(dissenting in part, i. e. as to the interest).
I agree with my colleagues to this extent: (a) The total tax due, on income and excess profits combined, Was precisely, to the penny, what taxpayer reported and paid; (b) the taxpayer in its returns erroneously computed its excess profits, adding to it the precise amount by which it under-stated its income tax. But I disagree with my colleagues that, on account of this error — utterly harmless to the government- — -some $52,000 (of so-called interest) must be exacted from the taxpayer. My reasons follow:
1. To understand this case, it is essential never to forget that the taxpayer, in computing and reporting, as it did, the two items — income and excess profits —had this sole aim: to make its excess profits tax larger because the 10% postwar refund, under § 780, applies to the excess profits tax alone, not to the income tax.
To achieve this aim, taxpayer had available either one of two alternative paper plans. Under what I shall call paper Plan I, taxpayer would have computed and reported its income and its excess profits exactly as my colleagues and I hold it should have done (except that perhaps it would have stated in its returns that it believed its reported income was too large in a designated amount, and its reported excess profits too small, in the same amount). It would then have paid a total tax in the exact amount which it did pay. It would then have sued for a refund of that part of its income tax which, according to its interpretation of the Code, it would have overpaid. Had taxpayer won that re*651fund suit, the government, of course, ■would have re-determined taxpayer’s excess profits tax, increasing it by the very amount which taxpayer had been held entitled to recover in its successful refund suit. Thus, through the resultant increase in taxpayer’s excess profits tax, the taxpayer would have achieved its sole aim, i. e., increasing its 10% postwar refund of excess profits tax under § 780.
Taxpayer, however, would have lost that refund suit (according to the ruling on which my colleagues and I agree). In that event, it would not have achieved its aim. But — and this is crucial- — -no one would then with a straight face have asserted that, because taxpayer had “gambled,” and lost, it owed the government some $52,000 for attempting this unsuccessful “gamble.”
Instead of using paper Plan I, taxpayer used what I call paper Plan II — -which consists of doing what it did: In its return, it augmented its excess profits and decreased its income in the same amount; then, when the Commissioner redetermined its income tax, it paid the consequent assessment and sued for a refund of this assessment. Had it won that refund suit, the effect would have been the same as the effect of winning the refund suit under Plan I. In other words, either paper Plan, for taxpayer’s purpose, was as good as the other if, under either Plan, taxpayer won its refund suit.
But my colleagues hold that losing the refund suit under Plan II costs taxpayer $52,000 — although (as we have seen) losing such a suit under Plan I would have cost it zero. So, according to my colleagues, a $52,000 liability is imposed on taxpayer for but one reason, namely that, in trying to increase its 10% postwar refund, it resorted to one rather than another paper Plan. The $52,000 thus shows up as a penalty for a mere error in paper-work concerning a single taxable event, an error which in no wise deceived the government and deprived it of nothing whatever. I think that “tax law” deserves the characterization Dickens’ Mr. Bumble gave “the law” in general — i. e., “the law is a ass” — if the failure of paper Plan II costs taxpayer one nickel more than would the failure of Plan I.
2. I concede, of course, that, if the statutory language directed such a result, we could do nothing to avoid it. But we should not embrace that result unless: explicit statutory provisions leave us no: escape. I cannot agree that the Code contains such provisions.
My colleagues rest their conclusion on this thesis: For all purposes under the Code, the income tax and the excess profits tax, due on March 15 of any single year, represent two wholly independent and unrelated taxes, so that, if the income tax is underpaid, the government has been deprived of the use of the amount underpaid from March 15 until it is paid, and therefore has a right to interest on that amount for the intervening period. For only by treating the two taxes as wholly unrelated, can it be said that taxpayer owes such interest, since no one denies that, as the taxpayer paid the total amount of tax when due, the government was not deprived of the use of any money for a split second.
Patently, no wall separates these two taxes. On the contrary, these taxes intertwine. Section 710(a) (1) (B) makes this plain: As my colleagues themselves note, it “placed an 80% ceiling on the combined income and excess profits taxes,” and thereby governs “to limit the total tax.” Here we have a congressional mandate that the two must be taken together, must be synoptically regarded. Each becomes a function of the other.
3. My colleagues cite decisions where the problem arose whether the statute of limitations barred the setting off of a claim, otherwise valid, made by either taxpayer or the government, against a valid, unbarred claim asserted by the opponent. I think the course of these decisions goes to show that even over the barrier of a limitations statute, the Supreme Court’s doctrine calls for avoidance of injustice when (as in the instant case) a single taxable event is in issue: *652In Bull v. United States, 1935, 295 U.S. 247, 55 S.Ct. 695, 79 L.Ed. 1421, in a suit by the government for income tax, the Court held that taxpayer, by way of recoupment, could successfully assert an overpayment of estate tax, arising from the same transaction, although the statute of limitations would have precluded an independent suit by taxpayer for the refund of the estate tax. In Stone v. White, 1937, 301 U.S. 532, 57 S.Ct. 851, 81 L.Ed. 1265, the question was whether, in a suit by trustees to recover a tax paid on the income of the trust estate, the government could assert as a counterclaim the tax which had not been paid by a beneficiary (who would receive the benefit of a judgment for the trustees) when the government’s claim would have been barred by the statute of limitations, had the government brought an independent suit against the beneficiary; the Court sustained the counterclaim. In Commissioner of Internal Revenue v. Gooch Milling & Elevator Co., 1943, 320 U.S. 418, 64 S.Ct. 184, 88 L.Ed. 139, the Court held that, on a taxpayer’s appeal to the Board of Tax Appeals from the Commissioner’s determination of a deficiency in income tax for 1936, the Board lacked jurisdiction to determine the amount of a 1935 overpayment of income tax, the refund of which was barred by the statute <of limitations, and to credit .that 1935 overpayment against the 1936 deficiency. The Court, 320 U.S. at page 421, 64 S. Ct. at page 186, distinguished Bull v. United States, supra and Stone v. White, supra, because they related to “the scope of equitable recoupment when it is asserted in a suit for refund of taxes in tribunals possessing general equity, jurisdiction.”
In Rothensies v. Electric Storage Battery Co., 1946, 329 U.S. 296, 67 S.Ct. 271, 91 L.Ed. 296, the facts were these: The taxpayer, from 1919 to 1926, had mistakenly paid excise taxes. In 1926 — when claims for refund of those taxes for 1919 to 1921 inclusive were barred by the statute of limitations — taxpayer filed suit for refund of the taxes paid between 1922 and 1926. It obtained a judgment, a part of which the government paid in 1935, through a settlement. The Commissioner treated this sum as part of taxpayer’s income for 1935, and on this account assessed a deficiency. The taxpayer, having paid this deficiency, sued for a refund. It contended that it had a right to recoup the amount of the excise taxes it had paid in 1919 to 1921 inclusive. The Court, rejecting this contention, distinguished Bull v. United States, supra, and Stone v. White, supra, saying, 329 U.S. 299-300, 67 S.Ct. 272: The doctrine of recoupment in tax cases “has never been thought to allow one transaction to be offset against another, but only to permit a transaction which is made subject of suit by a plaintiff to be examined in all its aspects, and judgment to be rendered that does justice in view of the one transaction as a whole. The application of this general principle to concrete cases in both of the cited decisions is instructive as to the limited scope given to recoupment in tax litigation. In both cases a single transaction constituted the taxable event claimed upon and the one considered in recoupment. In both, the single transaction or taxable event had been subjected to two taxes on inconsistent legal theories, and what was mistakenly paid was recouped against what was correctly due.” 1 In the instant case, relating to a single year (and with no statute of limitations involved), the taxpayer’s income and the excess profits constitute together a “single * * * taxable event”. This “transaction which is made the subject of suit” should therefore “be examined in all its aspects, and judgment * * * rendered that does justice in view of the one transaction as a whole.” As the Supreme Court has said, a suit like this is “equitable in its function.” 2 It cannot be equitable to exact a $52,000 penalty based on what is only a bookkeeping rearrangement of figures.
*6534. It is true, as my colleagues say, that, generally speaking, each taxable year is a separate unit, a doctrine which sometimes yields injustices. But, even that doctrine, designed to avoid difficulties in the administration of the revenue laws, is, as shown above, not without its exceptions designed to prevent major injustices. As I understand my colleagues, they suggest that, because that doctrine often works unfairness to taxpayers, we should not bother about injustice here, where that doctrine has no application.
5. Manning v. Seeley Tube & Box Co., 338 U.S. 561, 70 S.Ct. 386, 94 L.Ed. 346, and Standard Roofing & Material Co. v. United States, 10 Cir., 199 F.2d 607, were cases in which the taxpayer attempted to change the basis of the tax. In the case at bar, nothing similar exists: no question here arises as to the amount of taxpayer’s income, the only question being the proportion of taxpayer’s income allocable to excess profits tax and income, respectively.3
6. In Superheater Co. v. Commissioner, 2 Cir., 125 F.2d 514, 516, cited by my colleagues, the decision turned on peculiar provisions of the Code under which the Board of Tax Appeals lacked jurisdiction to re-determine excess profits tax of a taxpayer on a review of the Commissioner’s determination of a deficiency in income tax. In the instant case, we face no such problem; for this is a suit, brought under 28 U.S.C. § 1346(a) (1) (ii), in the district court which has no such restrictions on its jurisdiction. Our opinion in that case concluded with the statement that “it seems clear that until the jurisdiction of the Board is further enlarged whatever procedural convenience might be attained by having a formal redetermination of the excess profits taxes in this particular instance must give way to the greater necessity for recognizing and giving effect to the limited statutory jurisdiction of the Board.” Note, too, how in Commissioner of Internal Revenue v. Gooch Milling & Elevator Co., 320 U.S. 418, at page 421, 64 S.Ct. 184, at page 186, 88 L.Ed. 139 (as pointed out above) the Court, holding that the Board lacked jurisdiction, distinguished Bull v. United States, supra, and Stone v. White, supra, on the ground that they related to suits not before the Board but to suits “for refund of taxes in tribunals possessing general equity jurisdiction.”
In Rosenthal v. Commissioner, 2 Cir., 205 F.2d 505, 512, the decision (so far as here pertinent) turned on the failure of the Commissioner to file a cross-appeal. Moreover, the court referred to “the settled rule that each taxable year is to be treated as a separate unit for, assessment and decisional purposes”, and that rule is irrelevant here.
7. For the foregoing reasons, I think that the income tax and the excess profits tax are not, in a case like this, to be considered wholly distinct from one another. If I am correct in this respect, then, the Code points the way to justice here. Section 321 provides: “If the taxpayer has paid as an installment of the tax more than the amount determined to be the correct amount of such installment, the overpayment shall be credited against the unpaid installments, if any. If the amount already paid, whether or not on the basis of installments, exceeds the amount determined to be the correct amount of the tax, the overpay-ments shall be credited or refunded as provided in section 322.” Section 322 (a) (1) provides: “Where there has been an overpayment of any tax imposed by this chapter, the amount of such overpayment shall be credited against any income, war-profits, or excess-profits tax or installment thereof then due from the taxpayer, and any balance shall be refunded immediately to the taxpayer.” And § 729(a) makes applicable to the *654excess profits tax all provisions applicable to the income tax which are not inconsistent with the specific provisions of the Chapter in respect of the excess profits tax.
. Emphasis added.
. Stone v. White, 301 U.S. 532, 535, 57 S.Ct. 851, 852, 81 L.Ed. 1265.
. In the Seeley Tube & Box Company case, supra, the Court expressly left open the interest question where a claimed abatement for deficiency had been assert-. ed before the deficiency was assessed, and this, too, in a loss-carry-back case where the arguments for exacting interest are far stronger than in the case at bar.