The opinion
DAVIS, Judge,
dissenting in part:
*298 I disagree with the major holding 1 for four reasons: (1) on its face the statutory language (denying interest) is clearly against taxpayer; (2) the legislative history is inconclusive at best; (3) this court has already held that we should apply the "unqualified” wording of the statute, leaving it to Congress to change any undesirable aspects of the existing legislation; and (4) no previous decision of this court calls for the majority’s result.
1. Section 2011(c) says flatly that "any” refund "based” on the state tax credit "shall be made without interest.” I.R.C. § 2011(c). There are no exceptions or limitations. We have uniformly held that a refund "based” on the state tax credit means that portion of the refund attributable to, resulting from, or representing the amount of state tax that has been claimed as a credit. See Edinburg v. United States, 223 Ct. Cl. 1 , 617 F.2d 206 (1980); Fahnestock v. United States, 119 Ct. Cl. 41 , 95 F. Supp. 232 (1951); J.P. Morgan & Co. v. United States, 136 Ct. Cl. 748 , 145 F. Supp. 927 (1956); Morgan Guaranty Trust Co. v. United States, 149 Ct. Cl. 735 , 277 F.2d 466 (1960). That judicial reading is the normal understanding of Section 2011(c). It is indisputable that, in that sense, the refund here was "based” on the credit; all (or almost all) of the refund was directly due to plaintiffs gross understatement in its federal return of the state death tax credit. The literal wording of the legislation blankets this case precisely.
2. The legislative history does not, in my view, lead to the special reading of the statute now adopted by the court — that Section 2011(c), despite its unlimited wording, applies only to a refund based on a credit for state death taxes paid subsequently to the filing of the federal return, not to refunds based on a credit for state death taxes paid prior to or contemporaneously with the filing of the federal return. The history quoted in the court’s opinion (ante at 294, note 3) does mention the possibility of payments of state death taxes subsequent to and in the light of the federal return, but the Committee reports also say, broadly and without restriction, that the no-interest provision was "designed to prevent the allowance of interest * * * on any *299 refund due to the State death tax credit” (emphasis added); the reports then go right on to say that "[i]n some instances, interest on the 80 per cent refunded would equal or exceed the 20 per cent which the Federal Government is permitted to retain.” See id. Those latter statements seem to indicate that Congress refused interest because it felt that, in the process of making refunds due to erroneous state tax credits, the federal share could be wholly eaten — a prospect Congress did not relish.
I do not say that the legislative history is clear, one way or the other, but I do say that the history is at most inconclusive and ambiguous, and therefore cannot support a departure from the statute’s own broad language.
3. In Edinburg, supra, our most recent state death tax credit case involving interest, we held that we should apply the "unqualified” terms of the no-interest provision as they are written. To the contention that the statute should not apply to the full extent of its words because of undesirable results, we said:
* * * To whatever extent the denial of interest upon such a refund may be undesirable * * * that is a matter of legislative policy which, if it is to be altered, must be changed by Congress and not by us.
223 Ct. Cl. at 7-8 , 617 F.2d at 210 .
That principle controls here. If the denial of interest is thought inequitable, as it may often be, it is for the legislature to change the rule. Allowance of interest on refunds is obviously a matter of Congressional choice. One can be of two minds about an error as careless as that made by this taxpayer.
4. No prior opinion of this court (or any other) adopts or suggests the present court’s theory that section 2011(c) applies only to refunds of post-return state tax payments. By disregarding the contents of those opinions one can perhaps harmonize the end-results of all of the decisions with the current ruling. The court’s opinion in this case does so by finding the newly-adopted principle either "implicit” in the previous decisions (although not men *300 tioned or suggested there at all) or not raised by those taxpayers. 2 That kind of fine-tuning may be useful to distinguish earlier opinions said to look the other way, but it cannot be employed (as the court now does) as independent and affirmative support for a new theory. The new rule must thus rest wholly on the court’s interpretation of the legislative history, and as I have said, I consider that far too rickety a foundation. If the impetus for the new interpretation is the possible unfairness of the no-interest provision, that postulate runs squarely counter to our approach in Edinburg .
In accordance with the opinion of the court and a stipulation of the parties as to the amount due thereunder, it was ordered on April 13, 1982 that judgment for plaintiff be entered for $76,197.17.
I concur, of course, that no interest was due after the refund was made.
Indeed, under the current rationale Edinburg would be decided differently as to the portion of the refund attributable to the $59,796 initially paid to Massachusetts before the federal return. The majority merely says that it was not there argued that the statute should not apply to that portion, and therefore the Edinburg court did not consider the issue. Ante, at 296 note 7.
The reader is invited to refer to 668 F.2d 1224 for the relevant headnotes.