The opinion
Kern, G. J., dissenting: In my opinion the case of Washington Railway & Electric Co., 40 B. T. A. 1249, which was reviewed by the full Board, which was not appealed, and in which the Commissioner acquiesced (1940-1 C. B. 5), correctly states the law applicable to the first issue herein in spite of the assumption to the contrary made by those who drafted the Congressional report quoted in the majority opinion herein. I know of no valid reason why the rule in Washington Railway & Electric Go. should be confined in its application to situations in which the taxpayer is a public utility. Therefore, 1 respectfully note my dissent.
IlARRON and Opper, JJ.. agree with this dissent.