(dissenting).
I am inclined to think that in affirming the Commissioner’s assessment of deficiencies the Tax Court reached the right result although for a reason not responsive to the issue framed by the parties.
Taxpayers are husband and wife. In 1945 — the tax year in question — -they made separate returns, whereas in the years prior to 1945 (while the bunched income reported in 1945 was in process of being earned) they had made joint returns. In computing their 1945 taxes under the relief provisions of Section 107 (a) they adopted the more favorable method of making the necessary prior year computations as though separate returns had been filed for such years. The issue formulated before the Tax Court was whether or not, in reporting the Section 107 income in 1945, the taxpayers were bound to compute their taxes on the joint return basis adopted in the prior years.
It is of course true that in applying Section 107(a) prior tax years are not opened and the tax for such years is not revised. The computations to be made under the Section constitute only the measure of the, tax for the year in which long-term earnings are received. But the taxpayers, in applying their method of computing their 1945 tax liability, in effect undertook to reopen the prior tax years. That this method imposed upon the Revenue Service an administrative burden of some consequence seems to me indisputable.
Under the method adopted by the Commissioner the tax attributable to long-term compensation is readily computed. The allocable portion is merely added to the net income as reported for a given year and the tax is computed on the combined amount in harmony with the rates in force for that year. The difference between that figure and the tax reported and paid represents the tax at*894tributable to the compensation allocable to the particular prior year. If, however, as the taxpayers here urge, the income and tax for the prior year may be determined on a different basis from that on which they were reported and computed, the result would be that additional computations, involving perhaps new factual and legal determinations, would have to be made. For example, the Commissioner points out that when a joint return is filed for a prior year, all income and deductions of both spouses are lumped together on the theory that the spouses are a taxable unit. If they are to be permitted to compute their Section 107 (a) tax on the basis of separate returns for that year, the income and deductions of each spouse must be determined. Even in community property states spouses may have separate deductions in addition to community income and deductions.
It is urged that the burden of proof in these respects is on the taxpayer, so that no real burden is cast on the Commissioner. But the Commissioner’s onus of auditing and of investigating the facts would appear still to remain. While perhaps the burden will vary from case to case and in the instance before us may have been slight, nevertheless burdensome uncertainties are inherent if taxpayers may switch at will from one method to another more favorable to themselves in these Section 107 cases. An unbroken line of authority holds that where taxpayers have made an election between two methods of making returns, their choice is binding. Administrative burden and inconvenience, among other considerations, historically lie at the foundation of the policy. No hardship or surprise could result to the taxpayers here by applying the salutary principle. In prior years they were not unaware that there was income in process of being earned which would have to be reported when received, and with that knowledge they made their choice. The same holds true in all these Section 107 cases, and I would apply the rule of Pacific National Co. v. Welch, 304 U.S. 191, 58 S.Ct. 857, 82 L.Ed. 1282, and holdings following it, to such cases.1
For these reasons I think the judgment below should be affirmed.
. See particularly Rose v. Grant, 5 Cir., 39 F.2d 340, 341, where the court said: “The statute gives the right to the bus-band and wife to file either a separate or a joint return, but not to change from one to the other at any time it appears to their advantage to do so. The impossibility under such a system of determining the amount of the tax due as required by section 250(b) of the Revenue Act of 1921 (42 Stat. 264), as well as the administrative inconvenience thereof, condemns it.”