“The term ‘election’ in its legal sense means the choice of one of two rights or things, to each of which the party choosing has an equal right, but both of which he can not have, * * * as when a man is left to his own free will to take or do one thing or another, which he pleases, * * * a choice between different things, * * * the act of electing or choosing’”
How later courts described this case
- “The term ‘election’ in its legal sense means the choice of one of two rights or things, to each of which the party choosing has an equal right, but both of which he can not have, * * * as when a man is left to his own free will to take or do one thing or another, which he pleases, * * * a choice between different things, * * * the act of electing or choosing’”
Written by the judges who cited it.
The opinion
Smith,
dissenting: The majority opinion stands for the proposition that where a taxpayer files an income tax return and reports a part of the profit from the sale of capital assets as liable to ordinary income tax and the balance as capital net gain, the taxpayer has failed to elect that the gain should be taxable as capital net gain. In such a case I think the taxpayer has not failed to elect that the profits should be taxed as capital net gain and if it is more advantageous that the tax be computed upon the basis that the entire profit was capital net gain, the taxpayer is entitled to have his tax liability computed accordingly. The taxpayer should not be prejudiced by the fact that he was not aware that all of the profit should be treated as capital net gain instead of only a portion thereof.
AeuNdell agrees with this dissent.