The opinion
HakRON, /., dissenting: I do not agree with the holding made under the third issue and, therefore, respectfully dissent.
In my opinion the evidence does not support or warrant a finding and conclusion that all of the events had occurred in 1948 which fixed petitioner’s liability for tax deficiencies and interest thereon for the taxable years 1943-1947, inclusive, and had removed all elements of contingency with respect to such liability. Petitioner’s burden of proof necessarily must be directed to the facts as they existed on or before December 31,1948, and our consideration of whether petitioner’s evidence successfully discharges its burden of proof should distinguish as accurately as possible between what became certain after the end of 1948 and what was fixed and determined on December 31, 1948. The light to be cast upon the situation cannot be derived from hindsight. The fact that eventually neither party appealed from this Court’s decision of issues pertaining to petitioner’s income tax liability for the years 1937-1939 should not influence our consideration of petitioner’s proof under this issue. We are required to studiously avoid, in weighing the evidence, allowing the balance to be ever so slightly tilted toward petitioner’s favor by that fact.
It is not enough for petitioner to say, now, that on December 31, 1948, no contingency any longer existed with respect to its liability for tax deficiencies for the years 1943-1947, or for the years 1937 through 1942, and for interest thereon, merely because its president, McCarthy, purportedly agreed with Duggan, its vice president and comptroller, that no appeal should be taken from this Court’s decision relating to the years 1937-1939 which was entered on December 22, 1948. Absent any formal, or even informal, commitment to the Commissioner before January 1, 1949, that petitioner would not appeal from this Court’s decision, such assertion by the petitioner is wholly self-serving and incompetent. Petitioner’s officers had 3 months from December 22, 1948, within which to change their minds and file an appeal. At the most, it should be concluded that as of December 31, 1948, McCarthy’s opinion that petitioner would not file an appeal was only tentative.
It appears that the majority view attaches far too much importance to the point that petitioner, before the end of 1948, transmitted checks to the collector of internal revenue for deficiencies and interest thereon for the years 1937 through 1942. In the letter of transmittal, petitioner did not state that it consented to the deficiencies and interest and that it would not appeal from this Court’s decision pertaining to the earlier years. No consent forms were executed by petitioner before the end of 1948. It is not proper to regard the mere remittance of funds to the collector as an agreement or consent to liability, or as a commitment not to appeal. For example, a collector is not under any obligation to regard a remittance as a payment of taxes or interest. See Lewyt Corp. v. Commissioner, 215 F. 2d 518 ; and Fred J. Arheit, 31 T.C. 46 .
Petitioner does not deny that if the respondent had filed appeal from this Court’s decision, it would have filed a cross-appeal. The situation was fluid and undetermined as of December 31,1948, whether there would be any appeal from this Court’s decision, and it is both unrealistic and unpractical to conclude that as of the end of 1948 appeal was unlikely. The majority view errs in giving petitioner’s evidence a value and weight which is not justified, and the conclusion reached improperly permits petitioner to choose the most advantageous year to it for accruing the item of interest for which it claims a deduction. The holding made here is not in harmony with the rule of Dixie Pine Products Co. v. Commissioner, 320 U.S. 516 , and Security Flour Mills Co. v. Commissioner, 321 U.S. 281 . Accrual and deduction in 1948 of interest on deficiencies for the years 1943-1947, inclusive, should not be allowed.