The opinion
OPINION.
Van Fossan:
On July 24, 1939, on consideration of alternative computations filed pursuant to report promulgated April 14, 1939 (39 B. T. A. 767), and in reliance on the decisions of the Board in Edward E. Rieck, 35 B. T. A. 1178, and Georgie W. Rathborne, 39 B. T. A. 56, and notwithstanding the reversal of the Board’s decision in the Rieck case in Commissioner v. Rieck, 104 Fed. (2d) 294, decision was entered in this proceeding as follows:
This proceeding was called from the Day Calendar of July 5, 1939, for hearing on settlement under Rule 50, and after argument same was taken under submission with leave to the petitioner to file a revised recomputation within ten days. Petitioner having filed a revised recomputation on July 11, 1939, and after due consideration, it is
Ordered and Decided : That there is an overpayment in income tax for the fiscal year ended January 31, 1935, in the amount of $821.37, which was paid within less than three years before the filing of the original petition.
On September 8, 1939, respondent filed a motion to vacate the decision and for reconsideration, which motion was duly entertained by the Board, final action thereon being postponed pending action of the Supreme Court of the United States on application for a writ of certiorari in the case of Rieck v. Helvering. Certiorari was denied November 6, 1939, 308 U. S. 602 . Action was further postponed to await deciison of the Circuit Court of Appeals for the Second Circuit in Commissioner v. Estate of George M. Dallas.
On March 25,1940, the United States Circuit Court of Appeals for the Second Circuit, in Commissioner v. Estate of George M. Dallas, 110 Fed. (2d) 743, reversed a memorandum opinion of the Board which had held to the same effect as Edward E. Rieck, supra. The court pointed out that its decision was in accord with the decision of the Third Circuit in Commissioner v. Rieck, supra.
*987 On consideration of the opinions of the Circuit Courts of Appeal in the two cited cases, we hold that an amended petition raising a new issue, filed more than three years after the payment of the tax, does not relate back to the time of filing of the original petition for the purpose of applying section 322 (d) of the Revenue Act of 1934, as amended by section 809 (a) of the Revenue Act of 1938.
Reviewed by the Board.
Decision will he entered under Bule 50.