(dissenting in part).
Of the $410,219.31 treble damage payment made by the appellant, I would hold that the sum of $132,223.62 was deductible as an ordinary and necessary business expense. In all other respects I agree with the disposition made by my brothers.
Judge Leibell’s careful and complete findings establish clearly that in the negotiations which followed the filing of the OPA complaint a settlement formula had been tentatively agreed upon which took no account of overcharges on Juil-liard’s fabric No. A-2391; and that thereafter errors were discovered by Juilliard employees in the Juilliard report on its fabric No. A-2391 which were promptly reported to OPA. The resulting overcharges in No. A-2391 amounted to about $110,000 which OPA insisted be trebled and added to the tentative settlement. This item brought the total amount of the settlement up to $410,219.31. Thus the amount paid by Juilliard for the settlement clearly included the trebled overcharges on fabric *845A-2391 as Judge Leibell repeatedly-stated in his opinion.
Three months after the settlement had been completed, the appellant reported to OPA a revised basis for the computation of a higher maximum price on A-2391. This was based largely on fabric No. A-2313 which later was found by OPA to be a proper base period fabric to which A-2391 was similar. As a result, OPA allowed a ceiling price of §2.975 per yard for A-2391. Although the fact-basis for this higher ceiling had been in existence and available at and prior to the settlement with OPA, it was not advanced by the appellant nor given effect by OPA until after the settlement. If the overcharge on A-2391 had been computed on the basis of this higher (by 150 per yard) ceiling which was subsequently allowed, the amount of the overcharges on A-2391 would have been §44,074.54 less, and the trebled damages would have been §132,223.62 less, than the amounts included in the settlement.
I fully agree with my brothers that the appellant, having entered into a settlement with OPA, may not now recover back any part of the amount paid. But that is not to say that it is not entitled to a tax deduction. The allowability of a tax deduction as a business expense of •damages paid to OPA depends upon whether the overcharges were made inadvertently or under such circumstances that the allowance of a deduction therefor would not frustrate any sharply defined statutory policy. Jerry Rossman Corp. v. Commissioner, 2 Cir., 175 F.2d 711, distinguished but not disapproved in Tank Truck Rentals, Inc., v. Commissioner, 356 U.S. 30, 78 S.Ct. 507, 2 L.Ed. 562.
In the circumstances of this case, the OPA’s subsequent approval of the higher ceiling upon a basis which had existed before the settlement, serves as an authentic demonstration that the overcharges computed on the basis of the higher ceiling would have satisfied the .statutory objectives. Consequently, the payments to the extent that they were based on the lower ceiling exceeded what was required to satisfy the statutory objective and a tax deduction in the amount of such excess (§132,223.62) would not frustrate national policy.