The opinion
TuRner,
dissenting: Under the common plan of the various revenue acts, each particular tax or group of taxes, such as excise taxes, is imposed under a separate title. The statutory provisions, substantive or administrative, peculiar to a particular tax are regularly included in the title imposing the tax. Beginning with the Bevenue Act of 1918, each of the revenue acts has concluded with a title or titles under some such heading as “General Administrative Provisions” or “General Provisions,” which provisions have been made applicable to all taxes imposed by the act in so far as they were not inconsistent with or contrary to the specific or peculiar provisions of the various tax-imposing titles. The period to be covered by the return and the time within which a return may be filed is regularly fixed by the provisions of the title wherein the tax is imposed and no instance comes to mind where any such title has ever contained words or provisions to indicate that the filing of delinquent returns was contemplated. Begardless of that fact, however, section 3176 of the Bevised Statutes, as amended, has been extended and applied to all of the revenue acts as part of the “General Administrative Provisions” or “General Provisions” either by specific reenactment or by- reference. The last revenue act to specifically amend or reenact section 8176 was the Bevenue Act of 1926, and so much of that section as is pertinent to the discussion here reads as follows:
Seo. 3176. If any person, corporation, company, or association fails to make and file a return or list at the time prescribed by law or by regulation made under authority of law, or makes, willfully or otherwise, a false or fraudulent return or list, the collector or deputy collector shall make the return or list from his own knowledge and from such information as he can obtain through testimony or otherwise. In any such ease the Commissioner of Internal Revenue may, from his own knowledge and from such information as he can obtain through testimony or otherwise, make a return or amend any return made by a collector or deputy collector. Any return or list so made and subscribed by the Commissioner, or by a collector or deputy collector and approved by the Commissioner, shall be prima facie good and sufficient for all legal purposes.
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The Commissioner of Internal Revenue shall determine and assess all taxes, other than stamp taxes, as to which returns or lists are so made under the provisions of this section. In case of any failure to make and file a return or list within the time prescribed by law, or prescribed by the Commissioner of Internal Revenue or the collector in pursuance of law, the Commissioner shall *844 add to the tax 25 per centum of its amount, except that when a return is filed after such time and it is shown that the failure to file it was due to a reasonable cause and not to willful neglect, no such addition shall be made to the tax. * * *
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In the instant case the question is whether or not the petitioner had the right or could under, the statute file an effective capital stock tax return after the time prescribed by statute. Section 105 (d) of the Eevenue Act of 1985 provides that “every corporation liable for tax under this section shall make a return under oath within one month after the close of the year with respect to which such tax is imposed” but contains no provision for the filing of delinquent returns. It continues as follows: “All provisions of law (including penalties) applicable in respect of the taxes imposed by section 600 of the Eevenue Act of 1926 shall, insofar as not inconsistent with this section, be applicable in respect of the taxes imposed by this section.” Section 600 of the Eevenue Act of 1926 levies an excise tax upon the sale or lease by the manufacturer of certain specified articles. Monthly returns are required and, consistent with the general plan of the revenue acts, section 600 contains no provision for the filing of delinquent returns. Section 1100 of the Eevenue Act of 1926, the first section of Title XI — General Administrative Provisions — provides, however, that “All administrative, special, or stamp provisions of law, including the law relating to the assessment of taxes, so far as applicable, are hereby extended to and made a part of this Act.” Section 1103 of that title reenacts the provisions of section 3176 of the Eevised Statutes, part of which has been quoted above, and from the provision quoted it appears that the filing of delinquent returns not only is anticipated but is required, even though it may be necessary for a collector, a deputy collector, or the Commissioner of Internal Eevenue himself to make such returns. I am unable to find anything in the statute to indicate that any exception was made or intended with respect to capital stock tax returns.
The reasoning advanced in the majority opinion is that the purpose of Congress in imposing the excess profits tax would be defeated if delinquent capital stock tax returns were permitted, since a taxpayer filing a delinquent capital stock tax return could declare a value for its capital stock which would wipe out any liability for excess profits tax. While such a case may be possible, the Commissioner at all times has the power to prevent it. Where a taxpayer fails to make and file a return or list at the time prescribed by law, the collector or a deputy collector is directed by the statute to make a return for such taxpayer, or the Commissioner himself may make the return, and the statute further provides that any return so made “shall be prima facie good and sulficient for all legal purposes.” A return so made *845 would, in my opinion, constitute the taxpayer’s first return within the meaning of section 105 (f) and the taxpayer would be hound by the value therein declared for his capital stock, and his return subsequently filed would be ineffective to change the value so established. If, however, the collector, his deputy, or the Commissioner fails to act, it is my view that the statute not only permits but anticipates the filing of a delinquent return by the taxpayer, subject to the penalty prescribed.
For the reasons stated above, I respectfully note my dissent.
ARUNdell, Smith, and Leech agree with this dissent.