(dissenting). Under section 210 of the Revenue Act of 1917, and in the case of this taxpayer, the commissioner had discretionary powers in the determination of its tax liability (Williamsport Wire Rope Co. v. United States, 277 U. S. 551, 48 S. Ct. 587, 72 L. Ed. 985) which gave somewhat more finality to his conclusions than in eases where he was bound by statutory rule of fixed percentages. Having such power and having determined the tax and authorized a refund of overassessment which was paid to and accepted by the táxpayer, the commissioner’s aetion and the acceptance of the refund by the taxpayer extinguished the tax liability. Save for fraud or mistake, no further aetion could be taken; but in that event the government might sue to recover as for money bad and received through such fraud or mistake, and the burden would be where it rightfully should be. It seems to me that reason dictates such requirement, and that the law contains no provision or implication otherwise.
Taxing laws are to. be construed strongly against the government in favor of the taxpayer. Gould v. Gould, 245 U. S. 151, 153, 38 S. Ct. 53, 62 L. Ed. 211. The commissioner cannot, in my view, under the guise of additional assessment or deficiency assessment, recover taxes refunded and accepted as in this ease. Under this conclusion, it is of course immaterial that the taxpayer failed to negative mistake of fact or law as to the first assessment, in the proceedings before the Board of Tax Appeals. Stripped of all form, he is seeking to recapture money which be has adjudged to belong to- the taxpayer, by a method not open to. him.
In the petition of the taxpayer, filed with the Board of Tax Appeals January 15,1926, it, in paragraph 4, averred (Transcript of Record, p. 2):
“The determination of the tax contained in the said deficiency letter is based upon the following error:
“The Commissioner erroneously assumed authority and jurisdiction to make such assessment which was made under the following facts and circumstances: * * '* ”
And then follows a statement of all the facts before us.
By Paragraph 6 (Transcript of Record, p. 4) the taxpayer asserts that it relies for its appeal on the following proposition of law:
“The Commissioner in entertaining and granting the taxpayer’s application to be assessed for income and profits taxes under the provisions of section 210 of the Revenue Act of 1917, and his aetion thereunder in determining the amount of taxes to be lawfully assessed against the taxpayer, exercised the power conferred by said Act of Congress, and fully and finally determined said matter. His order in the premises directing the ref-fund to be made to taxpayer, and the actual refund thereof by the Government, closed and ended the transaction, and said Commissioner of Internal Revenue had no authority, right or jurisdiction to again reconsider said matter. Taxpayer contends that all proceedings taken by the Commissioner of Internal Revenue after said original determination of August 27, 1923, were and are without authority of law and null and void.”
To this petition the commissioner answered admitting the facts contained in the petition and averring that the propositions of law were: (1) The assessment made by the commissioner was made within the scope of his authority and represented a valid and legal assessment; (2!) the United States Board of Tax Appeals has no jurisdiction in this case (Transcript of Record, p. 16). After the hearing before the Board of Tax Appeals, the Commissioner moved to dismiss the proceeding upon the ground that he had not determined a> deficiency within the meaming of the statute, and that the Board is without jurisdiction to determine the issue raised. (I think this motion well might have been sustained, since the tax assessed was not in fact a deficiency but represented a changed view of the commissioner.) The Board of Tax Appeals made findings of faet which were not in dispute and by opinion denied the commissioner’s motion to dismiss the proceedings for lack of jurisdiction and stated as its opinion (Transcript of Record, p. 20):
“The Board hasi heretofore had occasion to. consider the question raised by petitioner relating to the authority of the Commissioner to reconsider his aetion after having made a refund of taxes to a taxpayer, under a similar state of facts, and has held that the Commissioner may withih the statutory period, or within the statutory period or such period as may be agreed upon between the Commissioner and the taxpayer, assess such tax as he determines to be due.”
Thus it seems to me that a question of law as to the authority of the commissioner was definitely and specifically raised before the Board, and as to which it decided adversely to this taxpayer. In other words, the appel*914lant contended before the Board of Tax Appeals that the commissioner acted without authority. The commissioner admitted the facts in the petition, denied he was without authority to assess the tax, and moved to dismiss for lack of jurisdiction for the reason that he had not determined a deficiency in tax. In this situation the Board of Tax Appeals decided against both. It seems to me there could be no burden on the taxpayer to prove that the commissioner was undertaking to do what he had no lawful authority to do; that is, make a deficiency assessment after the tax liability had been extinguished. It is for the government to assert the commissioner’s mistake and impeach his judgment by appropriate action. United States v. Kaufman, 96 U. S. 567, 571, 24 L. Ed. 792; United States v. Real Estate Savings Bank, 104 U. S. 728, 733, 26 L. Ed. 908. The findings of the commissioner in making assessments may be prima, facie evidence of their correctness, if he has the lawful right to make them, but where he has previously taken lawful action (a determination involving administrative discretion)', which preeludes such further findings, they have no force at all.
Assuming the Board had jurisdiction to decide the question of the commissioner’s authority, it was clearly a legal question with all the essential faets conceded and before it. No other showing was necessary. The presumption of the validity of the commissioner’s findings fails if he had no lawful authority to determine a deficiency assessment. The taxpayer on appeal to the Board of Tax Appeals assailed the commissioner’s action, not because of an erroneous, wrong, or illegal assessment, but because he had no lawful authority to make any assessment.
The conceded faets before the Board raised the legal question of the commissioner’s authority. No other evidence was necessary. I have heretofore taken this view in a somewhat analogous case, Sterling Spring Company v. Routzahn, No. 14485 in Law, decided orally. No review of this case was taken by the government.
Subsequent legislation has made statutory the rule and principle of law which had theretofore been applied by the courts respecting the finality of the commissioner’s determination of the assessment and the taxpayer’s acquiescence therein, but such legislation does not transform an absence of authority for making an assessment into a valid ground therefor.
I think the view taken here is supported by the Kales Case, wherein affirmance was based upon the proposition that the commissioner’s action in determining the assessment, acquiesced in and paid by the taxpayer, constituted an adjudication; and that unless authority, express or clearly implied, is given by statute the tax cannot be reopened or reassessed. In that ease the government appears to have advanced, the claim, of justifica^ tion that “a new and better view of the same faets,” resulted from a matured and better judgment, and made no claim of fraud or misrepresentation or of new evidence, or of mistake of law or fact. Nor do I see how any clearer implication or authority can arise out -of the fact that the same commissioner here is endeavoring to do what it was held in the Kales Case a successor could not do. There would seem to me to be no more reason for permitting the same commissioner to reverse himself under such circumstances than in permitting a successor to reverse him. The principle of the finality of the action is the same in either case.
If this taxpayer had not appealed to the Board of Tax Appeals, but had paid the assessment under protest and then sued to recover it, the situation would have been the same as in the Kales Case.
If the commissioner had the power to make the deficiency assessment, I do not think the government should be deprived of its just taxes because of the unwarranted action of the commissioner in making the so-called jeopardy assessment under an apparent misapprehension of the taxpayer’s character or intention.
Under, the assumption of the validity of the assessment, I agree with the conclusion of the majority of the court respecting the question of the statute of limitations.