United States v. Ophelia Johnson and Ophelia R. Johnson, as Under the Last Will and Testament of Clifford L. Johnson, Deceased

*955 GEWIN, Circuit Judge

(dissenting).

I respectfully dissent. In my view the majority opinion recognizes, but fails to give proper emphasis to decided cases and rulings of the Internal Revenue Service which support the position of the taxpayer. The following is from the majority opinion:

“For aid and comfort, the taxpayer is compelled to resort to the rulings of the Internal Revenue Service. Surprisingly, the Service has given him a helping hand.”

A taxpayer should be able to rely on Revenue rulings, acquiescence by the Internal Revenue Service in decisions and interpretations in the past, and decided cases. The public as well as the government must be considered. Legitimate rights may even accrue in reliance upon an unconstitutional statute. New judicial interpretations which erase the past should be made with great reluctance and caution, and only for strong and impelling reasons. In Chicot County Drainage Dist. v. Baxter State Bank, 308 U.S. 371 , 60 S.Ct. 317 , 84 L.Ed. 332 -33, the Supreme Court said:

“It is quite clear, however, that such broad statements as to the effect of a determination of unconstitutionality must be taken with qualifications. The actual existence of a statute, prior to such a determination, is an operative fact and may have consequences which cannot justly be ignored. The past cannot always be erased by a new judicial declaration. The effect of the subsequent ruling as to invalidity may have to be considered in various aspects, — with respect to particular relations, individual and corporate, and particular conduct, private and official. Questions of rights claimed to have become vested, of status, of prior determinations deemed to have finality and acted upon accordingly, of public policy in the light of the nature both of the statute and of its previous application, demand examination. These questions are among the most difficult of those which have engaged the attention of courts, state and federal, and it is manifest from numerous decisions that an all-inclusive statement of a principle of absolute retroactive invalidity cannot be justified.”

The foregoing principle was followed by this Court in a recent opinion by Judge Rives. United States v. Walker, (5th Cir. 1963) 323 F.2d 11 .

While the Seventh Circuit in McGowan v. United States, (1960) 277 F.2d 613 , ruled against the taxpayer, it did not criticize or undertake to overrule Mary Miller v. Commissioner, (1954) 22 T.C. 293 , which had been affirmed by the Sixth Circuit in 1955, 226 F.2d 618 . Nor did it undertake to overrule Lester B. Martin v. Commissioner or Judkins v. Commissioner. They were discussed and expressly distinguished.

I find myself in essential agreement with the opinion of the United States District Court in Peebles v. United States, (D.C.S.D.Ala.1962) 208 F.Supp. 385 . I would affirm.