The First National Bank of Birmingham, Alabama, and Sindey M. Amith, Executors of the Estate of Henery M. Smith v. United States

JOHN R. BROWN, Circuit Judge

(concurring) :

I concur fully in the opinion and the result. I add this concurrence merely to focus professional attention on another effective use of the marvels of electronic machines in the vastly expanding business of litigation and its disposition.

On reading the briefs, and particularly those of the Government, one gained the vivid impression that this was a cause celebre. If not a frontal, it was at least a massive oblique assault on the conceptually unique Tompkins-Mitchell principle2 on the estate taxation of life insurance proceeds in a survivor’s buy-out arrangement.

Believing that Judges, like lawyers, O’Toole v. William J. Meyer Co., 5 Cir., 1957, 243 F.2d 765, 769 (dissenting opinion), ought to know what is going on before them, the question in our minds, was whether this was an isolated case of an isolated set of taxpayers in an isolated nonrepetitive setting, or was it one of those test cases so often tenderly coveted by tax counsel, private and government. This prompted an inquiry from the bench which counsel, quite understandably, could not then authoritatively answer. This precipitated the further court-suggestion that a check be made by machine search through the RIRA3 computerized-record keeping and data retrieval equipment developed by the Internal Revenue Service and which has flowered under the enthusiastic cultivation of Chief Counsel Rogovin and his staff.

By post-submission memorandum, the Court has now been authoritatively advised that the question presented in this case, classified in this era of creeping numeralism as 2042.04-03 in the RIRA structure,4 is the only one pending within *632the Service, before the Tax Court or the District Courts.

The judicial importance of this information to us is best demonstrated by the Court’s statement that “[w]e conclude that the appeal really involves no true question of estate tax law.” 358 F.2d at 626. Our approach could then safely be that of an Alabama, not the so-called Federal, case.

The task of searching the tens of thousands of cases pending within the Internal Revenue Service and parallel court structures presenting an almost infinite number of legal issues would have been both impracticable and impossible but for the machine. The machine, suspect as it is for the supposed lack of judgmental capacity essential to adjudication, bears out again the hopes and predictions5 now bearing fruit in a variety of ways6 that it serves a useful, indeed perhaps indispensable, function in the judicial process as the world, and the people in the world, face the increasing complexities of an expanding social and economic structure.

. Estate of Mitchell v. Commissioner, 1938, 37 B.T.A. 1, acquiescence, 1939-1 Cum. Bull. 23; Estate of Tompkins v. Commissioner, 1949, 13 T.C. 1054, acquiescence, 1950-1 Cum.Bull. 5; Boston Safe Deposit & Trust Co. v. Commissioner, 1934, 30 B.T.A. 679; Dobrzensky v. Commissioner, 1936, 34 B.T.A. 305; Estate of Ealy v. Commissioner, 1951, 10 P-H Tax Ct. Mem. 431; Mertens, Federal Gift and Estate Taxation § 9.15; Private Ruling, 1948 Fed. Est. & Gift Tax Rep. par. 6012 (Nov. 24, 1947).

. Reports & Information Retrieval Activity.

. See RIRA: A Legal Information System in the Internal Revenue Service, * * * Taxes * * * (April 1965); Address by David T. Link, “Computer Use in Ad*632ministration of Enforcement Activities,” in ABA-ALI Joint Comm, on Continuing Legal Education, Law and Computers in the Mid-Sixties (1966); Address by R. P. Hertzog, Associate Chief Counsel, IBS, “Federal Tax Settlements and Litigation Policies,” to be published in Journal of Taxation.

. Brown, Electronic Brains and The Legal Mind: Computing the Data Computer’s Collision with Law, 71 Yale L.J. 239 (1961).

. See Louisville & Nashville R.R. v. Knox Homes Corp., 5 Cir., 1965, 343 F.2d 887, 896 n. 37; Transport Indem. Co. v. Seib, 1965, 178 Neb. 253, 132 N.W.2d 871; Bush v. Martin, S.D.Tex., 1966, 251 F. Supp. 484 n. 73; Bituminous Coal, Tennessee, Kentucky and Virginia to North Carolina, Tennessee and Virginia, 325 I.C.C. 548 (1965); Glass Bottles, Muskogee, Okla. to Chicago Group, 1964, 323 I.C.C. 258, 260-61; American Colloid Co. v. Akron, Canton & Youngstown R.R., 1963, 321 I.C.C. 91, 93; ICC Annual Report, 321 I.C.C. 238, 32 ICC Pract.J. 259, 272 (1965); Shinn, Computerization of Applicable Freight Rates, 33 ICC Prac.J. 141 (1965); McGrath, Computerization of Tariffs, 33 ICC Prac.J. 255 (1965); Fahl, Data Processing Applications in Collective Ratemaking, 32 ICC Prac.J. 572 (1965); Comment, Motor Transportation, 32 ICC Prac.J. 502 (1965), commenting on Burnham Van Service, Inc. Household Goods, From and To Thirteen States, 1965, 98 M.C.C. 58, T.I.M.E. Freight, Inc., Extension — Alternate Route —Memphis and Atlanta, 1962, 89 M.C.C. 241; Western Transp. Co., Extension—Vegetable Oil, 1965, 98 M.C.C. 86.

And see ICC Annual Report (79th, 1965), pp. 7, 12. All data-processing activities of the ICC are now centralized in the Managing Director’s Office. The current study of ICC operations by Pennsylvania Research Associates, Inc., as a project of the Bureau of the Budget, in exploring “the potential of ADP techniques” has as its aim improvement in the decisional process. See also 33 ICC Prac.J. 515 (March 1966).

The computer’s practical importance in the eyes of practical hard-working lawyers engaged in private practice is demonstrated by the number of seminar studies in depth under the sponsorship of the Joint Committee on Continuing Legal Education of the American Law Institute and the American Bar Association. The most recent are “The ALI-ABA Course of Study on Law and Computers in the Mid-Sixties” and “Course of Study on Cost-of-Service Rate Making in the Mid-Sixties” scheduled in Los Angeles March 31-April 2, 1966.