The opinion
Opper, J., dissenting: As to the second issue, I must again dissent, this time on the authority of H. Fendrich, Inc. v. Commissioner, (C. A. 7) 192 F. 2d 916 ; City Machine & Tool Co. v. Commissioner, (C. A. 6) 194 F. 2d 535 ; and Claremont Waste Mfg. Co. v. Commissioner, C. A. 1) unreported (May 7, 1952). 1 See also Kemp Real Estate Co. v. Commissioner, (C. A. 2) 205 F. 2d 236 .
Furthermore, the present facts convincingly demonstrate the necessity of considering “standard issues” in connection with the rejection of claims for refund under section 722. It is only respondent’s increase of petitioner’s excess profits credit under section 713 which brings the case here to contest the denial even in part of the 722 relief. Of course the petitioner is not entitled under section 722 to any consideration with respect to abnormalities where the tax computed under other relief provisions, such as section 713, is not excessive or discriminatory. Irwin B. Schwabe Co., 12 T. C. 606 ; Homer Laughlin China Co., 7 T. C. 1325 . But the over-all consequence is that petitioner has overpaid its tax to the full extent of the amount presently being claimed under section 722. And that claim on one theory or another is concededly valid. The failure to find an overpayment in the full amount, particularly on the ground of an absence of jurisdiction which three circuits now regard as erroneous, seems to me a grave miscarriage of justice.
Arthstdell, HaRRON, and Baum, JJ., agree with this dissent. In the last two cases, the Commissioner appears to have conceded error. See P-H 1952, par. 72,499, 52-2 ÜSTC, par. 9429. In fairness to him, it must be said that he apparently does the same now.