The opinion
LittletoN,
concurring: I concur in all that is said in the e foregoing opinion and desire only to point out, first, that the letter of. May 13, 1921, written by the attorney-in-fact of the partnership and plaintiff clearly did not have reference to the second or double deduction of the profits tax due by the partnership, as a separate taxable entity, from -the plaintiff’s distributable share of the net income of the ^partnership remaining after the deduction from the total net taxable income of the partnership of the total profits lax due by such partnership; and, second, that even if the inquiry of plaintiff’s attorney on May 13, 1921, could be Tegarded as a claim for refund,'informal or otherwise, the provisions of the Revenue Act of 1917, which levied an -excess profits tax on the net income of the partnership, did not authorize a double deduction of the excess profits tax due "by the partnership, first, from the total net income of the partnership in determining the distributable share of the . partners; and, second, another deduction of such profits tax by the partners when returning as their income such distributable share of the partnership net income remaining :after the first deduction of such profits tax.
At the time the letter of May 13, 1921, finding 4, was written, it was the established and uniform practice of the "Bureau of Internal Revenue to determine the' total net taxable income of the partnership and in accordance with the provisions of the Revenue Act of 1917 to compute thereon .an excess profits tax which was payable by the partnership. After such profits tax had been determined, the amount thereof was deducted from the total net income of the partnership, which, except for such profits tax, would be distributable and taxable to the partners. After the profits tax had thus been deducted from the total net income of the partnership, the balance was treated as the amount distributable and taxable to the partners in the proportion of their Interests in the partnership. A second deduction of the profits tax due by the partnership was not under the regulations and decisions then in force allowed to the partners from their distributable income of the partnership as so -determined. The letter of May 13, 1921, obviously had reference only to the one deduction of the profits tax which *268 was then being consistently allowed in determining the amount of the distributable income of the partnership taxable to the partners. Its language clearly so shows for the reason that it was simply an inquiry of the Commissioner whether the distributable share of the partners could be determined at the same time the final determination was made in respect of the taxable net income and excess profits tax of the partnership, inasmuch as a change in the excess profits tax of the partnership which was deductible from the total net income of the partnership in determining the remainder distributable and taxable to the partners would affect the amount so distributable and taxable to the partners. It was not until more than five years later, on November 3, 1926, that the case of Reid v. Rafferty, 15 Fed. (2d) 264, was decided in which it was held, and I think erroneously, that notwithstanding the excess profits tax imposed upon and due by the partnership upon its total net taxable income had been deducted from such total net income in. determining the distributable share taxable to the partners, the partners were again entitled in reporting such distributable share for income tax purposes to again deduct from such distributable shares the total excess profits tax due by the partnership. The overpayment here sought to be recovered results from such second deduction which was clearly a different ground than that to which the letter of May 13, 1921, had referred. It is obvious that if the attorney of the partnership and plaintiff had been referring to the second deduction, which had up to that time never been allowed, he would have stated his position with reference thereto in language sufficiently clear not to be misunderstood. It is clear, therefore, that even if the letter could be treated as an informal claim for refund, it did not specify the ground or facts upon which this suit is based.
I am of opinion that the Revenue Act of 1917 ( 40 Stat. 300 ) authorized and allowed only one deduction of the excess-profits tax of the partnership in determining the distributable income of the partnership taxable to the partners and that, for that reason, plaintiff has underpaid rather than overpaid his taxes. In the case at bar the total net taxable income of the partnership was $544,488.87, and the excess *269 profits tax due and paid by the partnership was $161,005.37. After the deduction of this profits tax from the net income of the partnership distributable and taxable to the partners, the amount so distributable and taxable was $383,483.50 (finding 5). The overpayment here'sought to be recovered is based upon a deduction the second time of excess-profits tax of $161,005.37 from the. distributable net income of the partnership of $383,483.50, remaining after the first deduction of such profits tax. The overpayment here sought to be recovered is therefore based upon a deduction by the.partners of twice the amount of profits tax of the partnership, or $322,010.74 instead of $161,005.37. In other words, under plaintiff’s contention each partner gets a deduction of the entire profits tax of the partnership from his distributable share of the partnership’s net income rather than his proportion of the profits tax of the partnership.
MEMOBANDUM ON MOTION FOR NEW TETAT,
Pee Curiam :
The motion for new trial must be overruled, not only for the reasons stated in the opinion of the Court, but also those stated in the concurring opinion of Judge Littleton, with which the Court agrees.