(dissenting).
Apparently accountants and at least some tax lawyers agree that the Commissioner has not been appropriately hospitable to the precepts of accrual accounting and applaud tentative judicial steps toward accepting such precepts. See, e. g., Behren, Prepaid Income—Accounting Concepts and the Tax Law, 15 Tax L.Rev. 343 (1960), discussing Bressner Radio, Inc. v. C. I. R., 2 Cir., 267 F.2d 520. For my part I would not disagree and think that within limits the trend to follow accounting ideas is desirable as bringing tax and business practices mutually into line. But I do feel it must stop short of delivering control of the revenue to the accountants. For accounting is not an exact science; and corporate balance sheets must deal with many fluid items, representing of course much factual information, but also a certain amount of prophecy, of hope, and of sheer argumentation. Because of this, because also the accountant does owe the duty of loyalty to his client, the result will naturally reflect the needs and desires of the client more than the appropriate demands of the tax collector, who not only must collect all the revenue due, but must hold the balance fairly and without discrimination among taxpayers. And the present holding, which goes beyond anything yet in the books, seems to me to exceed proper bounds in committing final adjudication as to the revenue to corporate accountants.
Consider the actual decision herein. It is that deductions for local tax liability are to be made, not when the liability is due and paid, but when some years later and after dispute the parties (not including the representative of the federal revenue) get together and adjust their difference. The opinion suggests no limitation of time or otherwise on the operation of the principle thus broadly announced; and upon reflection I can see none of any actual operative effect. It would seem that a taxpayer, by asserting a dispute as to a liability for taxes paid, *158may postpone the use of such payment as an income tax deduction practically indefinitely until it finds it expedient to settle the dispute with or without receipt of a refund. I presume the dispute must be honestly asserted with perhaps some indicated possibility of success. But these are such minimal requirements as to the large tax liabilities of great corporations as to be meaningless in practice. Obviously a local tax dispute can be prolonged for years; and extrinsic factors such as a corporate reorganization might prolong it yet further. Moreover, I do not see how the principle can be limited only to tax payments; it would seem applicable to other disputed payments generally. Thus ascertainment of the corporate income is substantially taken out of the hands of the revenue authorities; discrimination between taxpayers is accomplished on the basis of the astuteness of the accountants employed; and the sound rule of annual federal tax accounting — perhaps the cornerstone of federal revenue collecting — is repudiated in a vitally important detail.
Moreover, an examination of the history of plaintiff’s real estate tax controversies with the City of New York for the fiscal years here involved indicates that the result reached by the majority does not even accord with generally accepted accounting principles. This is shown clearly by the following table:
City Amount of Tax % of Fiscal Year Payment Contested Amount Refunded Claim
1946- 47 .......... $ 292,250.27 $ 132,290.00 45.3
1947- 48 2,925,546.94 1,020,232.50 34.9
1948- 49 3,239,580.43 764,162.50 23.6
1949- 50 3,156,256.61 465,522.50 14.7
1950- 51 3,270,292.22 343,745.00 10.5
My brothers are accepting the view that an accountant, viewing the tax payment for the 1950-51 fiscal year, for example, would exclude $3,270,292.22, the amount of the claim, from the tax expense accounts of that period, notwithstanding that prior experience indicates that the corporation was not likely to recover more than about 20 per cent of its claim. The accountant would also be overlooking the fact that in presenting claims based upon disputed property assessments a taxpayer will generally inflate his claim in order to secure a more strategic bargaining position. I see little correspondence between such result and the fundamental aim of accrual accounting which is to match revenues with the expenses incurred in producing such revenues.
When the amount of claimed refund is thus made determinative for federal corporate tax purposes, an open invitation is extended to manipulation through self-serving appraisals. The date and amount of payment, however, appear to me to represent a fixed and definite standard, which should be here adopted in preference to the amount which the corporation unilaterally determines to contest, or to an uncertain estimate or educated guess as to the amount of refund which may be secured at some unknown future date. See Automobile Club of Michigan v. C. I. R., 353 U.S. 180, 77 S.Ct. 707, 1 L.Ed.2d 746. Moreover, there is little reason why a taxpayer who has suffered an out-of-pocket expenditure in satisfaction of a tax assessment should be penalized by the denial of a deduction merely because he embarks upon the uncertain and often unrewarding course of contesting the amount of the assessment.
Certain Supreme Court decisions are relied on as forcing the result here reached; but at most they subscribe only to the trend as I have done above, and do *159not try to establish what the limits, so obviously necessary and inevitable, will be. Justice Roberts in Security Flour Mills Co. v. C. I. R., 321 U.S. 281, 286, 64 S.Ct. 596, 598, 88 L.Ed. 725, indeed goes so far as to speak disparagingly of taking cash payments, inter alia, “out of the annual accounting system and, for the benefit of the Government or the taxpayer, treat [ing them] on a basis which is neither a cash basis nor an accrual basis, because so to do would, in a given instance, work a supposedly more equitable result to the Government or the taxpayer.” Neither in that case nor in Dixie Pine Products Co. v. C. I. R., 320 U.S. 516, 64 S.Ct. 364, 88 L.Ed. 270, also principally relied on, is there any holding that tax liabilities already paid should not be accounted for taxwise until all disputes have somehow been put at rest.1 On the other hand, in the only actual cases presenting the precise issue, the Court of Claims in reasoned opinions, noting and considering the obstacles I have discussed above, has reached the opposite result, which Judge Sugarman below quite properly followed. See the persuasive opinion of our oft-times colleague Judge Madden in Chestnut Securities Co. v. United States, 62 F.Supp. 574, 104 Ct.Cl. 489, and of Judge Littleton in this very ease in earlier years. Consolidated Edison Co. of N. Y. v. United States, 135 F.Supp. 881, 133 Ct.Cl. 376, certiorari denied 351 U.S. 909, 76 S.Ct. 694, 100 L.Ed. 1444. See also 2 Mertens, Law of Federal Income Taxation § 12.67, p. 106, n. 94 (1959 Cum.Supp.). Even though it has been summarily rejected by my brothers, I think Judge Madden in the Chestnut Securities Co. case, supra, 62. F.Supp. 574, 576, 104 Ct.Cl. 489, has stated the correct principle for decision here that “Accrual, from the debtor’s standpoint [and the government’s as well], precedes payment, and does not survive it.”
I would affirm.
. In Dixie Pine Products Co. v. C. I. R., 320 U.S. 516, 64 S.Ct. 364, 88 L.Ed. 270, a taxpayer on the Accrual basis was not allowed to deduct state taxes which he was contesting and had not paid. No question was raised as to taxes of a previous year which had been paid. In Security Flour Mills Co. v. C. I. R., 321 U.S. 281, 64 S.Ct. 596, 88 L.Ed. 725, a taxpayer who was making late reimbursement of a federal processing tax which had been declared invalid was not allowed to deduct these repayments as of the date of the original tax. Lewyt Corp. v. C. I. R., 349 U.S. 237, 75 S.Ct. 736, 99 L.Ed. 1029, also cited, concerns only the accruing of a federal excess profits tax in a year earlier than that of payment. None of these cases suggests the possibility that accrual may occur long after payment.