The opinion
Smith,
dissenting: I dissent from so much of the opinion as holds that a tax due for 1917 is not barred by the statute of limitations. Section 250 (d) of the Revenue Act of 1921 provides that taxes under prior revenue acts:
* * * Shall be determined and assessed within five years after the return was filed, unless both the Commissioner and the taxpayer consent in writing to a later determination, assessment, and collection of the tax; and no suit or proceeding from the collection of any such taxes * * * shall be begun, after the expiration of five years after the date when such return was filed, * * *_
In Bowers v. New York & Albany Lighterage Co., 273 U. S. 346 , the court, commenting upon this provision, said:
* * * A reasonable view of the matter is that it was the intention of Congress by the clause here in question to protect taxpayers against any proceeding whatsoever for the collection of tax claims not made and pressed within five years.
The bar of the statute of limitations with respect to the tax due for 1917 had fallen prior to the giving of any consent to a later determination of the tax by the taxpayer. There was no consideration for the giving of the consent, in my opinion. The taxpayer may repudiate the consent.
I entirely agree with the decision of the Court of Appeals of the District of Columbia in Joy Floral Co. v. Commissioner of Internal Revenue, 29 Fed. (2d) 865, that a waiver of the statute of limitations in order to be effective must be given before the bar of the statute of limitations has fallen. The language of section 250 (d) of 'the Revenue Act of 1921 requires that construction.
Trussell and Love agree with this dissent.