The opinion
Makquette,
dissenting: The opinion herein holds that “ the respondent has correctly construed the statute and that the deficiencies determined are in accordance therewith.” When the Board reaches such a conclusion I believe it has exhausted its powers, except to enter a judgment for the respondent. The opinion proceeds, how *776 ever, to discuss the constitutionality of the statute and reaches the conclusion that it is unconstitutional. This, in my opinion, is a clear usurpation of a judicial function not possessed by this Board. I have had occasion heretofore, in Henry Cappellini, 14 B. T. A. 1269, to express the idea that the power to declare an act of Congress unconstitutional is exclusively a judicial function; that no part of the judicial power of the United States, in a constitutional sense, is vested in this Board, and that the Board is without power to approach such a question. I am still of the same opinion. However persuasive the reasoning may be, or however logical the conclusion, it oilers no excuse for the exercise of a power which we do not possess. It seems to me that such a pronouncement is binding on no one, and I believe the respondent is entitled to collect the deficiency as determined by him.
Morris and Van FossaN agree with the above dissent.