W. H. Hill Co. v. Commissioner

TRAmmell,

dissenting: The Board has adopted this opinion on the theory that this case is distinguishable from the Paso Robles Mercantile Co. cases on the principle that the amount had already been credited by the Commissioner on the previous fiscal year return, that is, for the year ended in the calendar year. In my opinion, however, this case is not distinguishable in principle from our previous decisions in the above cases. When the Commissioner asserts a deficiency we have the authority to determine whether or not that deficiency is correct. If the correctness of the amount claimed to be due rests upon the method of crediting the amount shown on the defective calendar year return (which above is not considered a return) we should determine whether the Commissioner properly made the credit. It seems to me that the amount of tax shown on the defective calendar year return should be allocated in accordance with the period over which the income came in. In other words, the income and the tax thereon should go together. This was our view in the Paso Robles cases. If this view is followed here a different result would be reached. If the credit had not been made, apparently the1 Board’s opinion is that it should be made in accordance with the Paso Robles decisions, but if actually made otherwise, the Board now holds that this action will not be considered erroneous. My view is that if the credit was not made as it should have been made, we have the right to say that it was erroneous.