(concurring).
I am in complete agreement with the views expressed in the majority opinion and would content myself with noting my concurrence but for the fact that the dissenting opinion appears to me to proceed upon an assumption which, with deference, neither Section 45 nor the construction and application of it in the cases warrant.
Because of this assumption which, as I understand it is that there is something about the determination of the commissioner under this section which makes it almost, if not quite, sacrosanct and unreviewable, and that the decision of the Tax Court approving it cannot be set aside on the ground that it is clearly erroneous, I thus briefly state my views.
Having its genesis in the consolidated returns provisions of Sec. 240(d) of the Revenue Acts of 1921 and 1924, 26 U.S. C.A., Sec. 993 note,1 and Sec. 240(f) of the Revenue Act of 1926, 26 U.S.C.A. See. 993(f), that section was designed to frustrate abuses of misallocation of gross income by authorizing the commissioner to allocate it where necessary to prevent the evasion or avoidance of taxes. Asiatic Petroleum Co. (Delaware) Limited v. Commissioner, 2 Cir., 79 F.2d *516234. It was not intended to give, it did not have the effect of giving the commissioner authority by fiat to allocate to one income which was really not his income but that of another. Nothing in the statute, nothing in the decisions supports the view that the commissioner’s determination under this statute is not subject to court review, just as his other determinations are. On the contrary, while the decisions do declare that congress has placed broad discretion in the commissioner and that a court cannot substitute its judgment for his unless that discretion has been abused, G. U. R. v. Commissioner, 7 Cir., 117 F.2d 187, 188, National Securities Corp. v. Commissioner, 3 Cir., 137 F.2d 600, it is well settled that his determination, “that such distribution, apportionment or allocation is necessary in order to prevent evasion of taxes or clearly to reflect the income of any such trades or businesses”, must be based upon evidence reasonably supporting it, and that, notwithstanding its approval by the Tax Court, this court may set it aside if of the opinion that the determination was clearly erroneous.
In Grenada Industries, Inc., v. C. I. R., 5 Cir., 202 F.2d 873, referred to in the dissenting opinion, this court did not intend to hold, it did not hold, that it was bound by the commissioner’s finding and allocation and approval of it without regard to the facts. On the contrary, the court took pains to say that the Tax Court had correctly analyzed the facts and has correctly applied the law to them. We did not intend to say, we did not say, that the review by the Tax Court and the appeal to this court were mere futile gestures for want of power in the Tax Court to review the determination of the commissioner and :'.n this court to review that of the tax court, as would be the case if the dissenting opinion is a correct statement of the law.
With respect to the view of the dissenting judge that we have come full cycle around since the Dobson case, Dobson v. C. I. R., 320 U.S. 489, 64 S.Ct. 239, 88 L.Ed. 248, in my opinion, an unwarranted piece of judicial legislation, it is sufficient to say that fortunately, with the aid of Congress, we have, and that under 26 U.S.C.A. § 7482 courts of appeals now have exclusive jurisdiction to review the decisions of the tax court in the same manner and to the same extent as decisions of district courts in civil actions tried without a jury. Nothing in the reasons for the enactment of this statute, nothing in the statute, supports or suggests what the dissenting opinion would read into it, that when the matter to be reviewed has to do with a determination under Sec. 45, the statute for review does not apply.
With the view of the dissenting opinion that the facts support the commissioner’s determination and because they do our reversal of the commissioner’s determination is wrong, I cannot of course quarrel. I can only say that I do not agree with its premise, and that if I could, I would of course agree with the conclusion.
. 1928 Edition rule.