with whom PELL and BAUER, Circuit Judges, join, dissenting in part and concurring in part.
I respectfully dissent as to the unpaid losses dispute.
In any tax year after 1962, an estimate of a loss incurred in that year, but not settled, measures a deduction from underwriting income. In a later year, if that loss is settled for less than the estimate, the statute causes the difference to augment underwriting income. In these instances, the statute itself is consistent with the inclusionary aspect of the tax benefit rule. Our problem arises because the present statutory taxing system began at the close of 1962, and the statute makes no allowance for the fact that an estimate of a loss incurred in 1962 or before, but not settled, may in fact be larger than necessary. When such a claim is settled after 1962 for less than the estimate, the statute causes income to be increased by the amount of the difference. The same thing happens where a post-1962 loss is settled in a later year for less than the estimate, but in the latter case the taxpayer has previously been able to deduct the full amount of the estimate in a previous year. Not so with the pre-1963 loss.
Clearly enough Congress has power to treat the post-1962 loss in the manner it has.
The settlement after 1962 of the pre-1963 loss presents a different question. Read mechanically, the statute treats the amount by which the company overestimated the pre-1963 claim as taxable income in the post-1962 year in which the claim is settled; the company’s tax is increased solely by reason of the fact that it paid a claim against its policies. This, however, is inappropriate, for the Sixteenth Amendment permits only the taxation of income, yet here the settlement produced none. When an unliquidated debt is discharged by an amount less than anticipated there is no gain or profit to the debtor, it receives nothing of value and is released from satisfying no obligation it was otherwise bound to perform.1
*352It seems to me that faced with a constitutional question, we are to look for constructions of the statute which might save it.2
A possible argument is that by taxing a mutual casualty insurance company’s “recovery” of the amount by which it overestimated a pre-1963 claim, Congress is merely attempting to levy a tax on part of the company’s previous income which under pre-1963 law escaped taxation. There is no dispute that, subject to certain limitations concerning harshness or arbitrariness of impact, Congress has the power to retroactively tax income, see e. g., Lynch v. Hornby, 247 U.S. 339, 343, 38 S.Ct. 543, 544, 62 L.Ed. 1149 (1918); Brushaber v. Union Pacific Railroad, 240 U.S. 1, 36 S.Ct. 236, 60 L.Ed. 493 (1916), but a statute will not be construed to do so in the absence of a “clear, strong, and imperative” declaration that such was the intent of Congress. Shwab v. Doyle, 258 U.S. 529, 535, 42 S.Ct. 391, 392, 66 L.Ed. 747 (1922), quoting United States v. Heth, 7 U.S. 399, 3 Cranch 398, 413, 2 L.Ed. 479 (1806); see also Rose v. Commissioner, 55 T.C. 28 (1970). In the present case, quite simply, there is nothing expressed in the text of the relevant statute or in its legislative history capable of satisfying this requirement, and intent may not be inferred from the language of the Act.3
Clearly Congress intended to enact a valid statute, and it seems far more likely that Congress, in designing a system consistent with the tax benefit rule, permitting the deduction of the estimated amount of a loss incurred after the effective date of the statute, but including in income in a later year the difference between the estimate and the lower amount of a settlement, intended that the principle of the tax benefit rule apply as well to an advantageous settlement after the effective date of the statute of a loss previously incurred.
Accordingly, I would affirm the Tax Court on this issue. I concur in Part III of the majority panel opinion.
. Of course the taxpayer is better off than it would have been had the claim been settled for a higher amount. The point, however, is that because it was never obliged to pay a higher *352figure, no benefit derived from the fact that the settlement cost less than estimated. The situation here is unlike the partial cancellation of liquidated debt, which usually results in a taxable income, for in the latter case the debtor is released from paying an amount he otherwise would be bound to pay. See generally, 3 Rabkin & Johnson § 36.01.
. Home Mutual contended, both in its petition for reargument and at oral argument before the court sitting en banc, that the relevant provisions of the statute as applied by the Commissioner should be held unconstitutional, but that this result could be avoided by invoking the exclusionary aspect of the tax benefit rule.
. It is not sufficient that an intent to levy a retroactive tax might reasonably be suggested by the terms of the statute. In Shwab, supra, the court found that the Act there in question “provided that ... a tax was to be imposed upon the transfer of the net estate of every decedent dying after the passage of the act, ‘to the extent of any ... transfer [made] ... in contemplation of ... death ... ’ ” and that transfers made within two years of death without receipt of fair consideration were rebuttably presumed to have been made for such a purpose. 258 U.S. at 532, 42 S.Ct. at 391 (emphasis added). The court nonetheless held that the Act should not be construed to apply to transactions completed before the Act became law and therefore held that the value of a trust created fifteen and a half months before passage of the Act was not taxable to the decedent’s estate. It reasoned that “a statute should not be given a retrospective operation unless its words make that imperative and this [could not] be said of the words of the Act” then before the court. 258 U.S. at 537.
Thus, in the present case, an intent on the part of Congress to retrospectively tax income should not be inferred from the language of the statute even though literal adherence to its terms might suggest such an intent.