Opinion

Independent Life Ins. Co. v. Commissioner

  • 17 B.T.A. 757
  • 1929 BTA LEXIS 2246
Court
United States Board of Tax Appeals
Filed
Oct 4, 1929
Status
Published
Author
Makquette
On the bench
Makquette, Steenhagen, Morris, Agree
Cited by
21 cases

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.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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