Opinion

National Builders, Inc. v. Secretary of War

  • 16 T.C. 1220
  • 1951 U.S. Tax Ct. LEXIS 173
Court
United States Tax Court
Filed
May 31, 1951
Status
Published
Author
Autjndell
On the bench
Johnson, Disney, Harhon, Fossan, Agree, Autjndell
Cited by
3 cases
Authority
More cited than 10.2%

The opinion

Autjndell, J., dissenting: I think this Court has erred in declining to accept jurisdiction in this case. Section 403 (e) (2) of the applicable statute, which is quoted in the majority report, permits a contractor to petition this Court where he is “aggrieved by a determination of the Secretary made on or after the date of the enactment of the Revenue Act of 1943, with respect to any such fiscal year,” i. e., the fiscal year ending before July 1, 1943, as to the existence of excessive profits. The substance of the majority holding is that the Secretary did not make a determination with respect to a fiscal year but made his determination on what is called a completed contract basis, that a determination so made is invalid and, consequently, there is no determination that is subject'to redetermination by this Court.

The prime error of my colleagues is in finding that the determination was not made “with respect to a fiscal year.” The contract was entered into and substantially performed during petitioner’s fiscal year ended March 31, 1943. Practically all expenditures were made during that period and all payments were made except a sum which was withheld pending renegotiation. Certainly the determination was with respect to that year. As stated by the Court of Appeals for the District of Columbia, in reversing us in Maguire Industries, Inc. v. Secretary of War, 185 F. 2d 434 , “The Secretary’s redetermination not only affects petitioner’s fiscal year but affects it in a large and direct way.” As stated by the Court in Muzzey v. Reardon, 57 N. H. 378, 381, “in respect to” means “connected with and growing out of.” See also People v. Clarke, 9 N. Y. 349, 368 .

The Tax Court is the only tribunal provided by Congress where a contractor, aggrieved by a determination that his profits were excessive, may petition for redetermination. We should be slow to hold we are without jurisdiction in such cases. As, in my opinion, the Secretary’s determination in this case was “with respect to a fiscal year” even though it was not for a fiscal year, I think the Tax Court should accept jurisdiction and dispose of this matter on its merits.

Van Fossan, Disney, and Johnson, JJ., agree with this dissent.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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