The opinion
BURGER, Circuit Judge
(concurring' in part and dissenting in part):
I agree with the majority that the Tax Court is probably without power to construct a three-factor formula to be substituted for the one-factor formula used by the Assessor. That the Tax Court’s formula makes sense and the Assessor’s does not is not the issue; rather it is a matter of where the power resides. I join with the dissent in viewing the Assessor’s action as arbitrary and I would go further and hold that it is legally arbitrary and capricious, and hence vio-lative of the statute under which the District purported to act. I would remand to require a reassessment of the tax, precluding the use of the one-factor formula. Concluding that the Assessor’s action was violative of the statute, I need not now reach the issue whether it was also violative of any constitutional protections.
On Petition for Modification of Judgment
PER CURIAM:
In the prior opinion of this court in these cases, it was stated at page 889 that:
“General Motors paid the assessment under protest, and appealed to the Tax Court. In that court, two primary arguments were urged as to the invalidity of the assessed deficiencies : one, that the numerator of the sales formula was too broad, in that it included sales which were not ‘District sales’; and, two, that use of the single-factor apportion *905 ment formula itself was permitted neither by the District Code nor by the Constitution.”
On page 889 this court stated that:
“For purposes of this appeal, [General Motors] appears to concede the correctness of the figures found by the Tax Court as representing ‘District sales.’ The controversy before us, therefore, does not relate to the definition of what sales by General Motors properly may be taken to be \ ‘District sales,’ made in the course of a business activity which is carried on both within and without the District. It relates, rather, to the formula to be used for apportioning to the District that part of General Motors entire net income attributable to its ‘District sales.’ ”
General Motors has petitioned for a modification of this Court’s judgment to the limited extent of remanding the cases to the Tax Court for consideration of the application of the regulation embodying the single-factor formula to the facts. It is said that, since the Tax. Court found that regulation invalid and proceeded to apply one of its own, there was never any adjudication of the contentions made by the taxpayer as to the proper scope of the application of the' former to its D. C. operations. There having been no ruling on these contentions, adverse or otherwise, there was, of course, nothing to be made the subject of an appeal, or to be waived, by the taxpayer.
We find this request to be meritorious and, indeed, consistent with the above-quoted passages from our prior opinion. We are also satisfied from an examination of the record that this issue was not stipulated away by General Motors. General Motors is, it seems to us, entitled to press, and to have resolved, its contentions with respect to the proper determination of “District sales” for purposes of a one-factor formula regulation which we, unlike the Tax Court, have found to be valid.
The petition is, accordingly, granted; and our earlier judgment is modified to the extent of providing that the reversal of the Tax Court decisions is to be accompanied by remand to the Tax Court for such further proceedings as are not inconsistent herewith.
It is so ordered.