“In a number of instances, Circuit Courts of Appeals have remanded cases for rehearing when it seemed necessary in order No. 10-5298 Lipker v. AK Steel Corp. Page 18 to do justice to the parties. . . . In addition, there is the well-established rule that an appellate court has the power, without determining and disposing of a case, to remand it to the lower court for further proceedings if the case has been tried on a wrong theory, or the record is not in condition for the appellate court to decide the question presented with justice to all parties concerned.”
How later courts described this case
- “In a number of instances, Circuit Courts of Appeals have remanded cases for rehearing when it seemed necessary in order No. 10-5298 Lipker v. AK Steel Corp. Page 18 to do justice to the parties. . . . In addition, there is the well-established rule that an appellate court has the power, without determining and disposing of a case, to remand it to the lower court for further proceedings if the case has been tried on a wrong theory, or the record is not in condition for the appellate court to decide the question presented with justice to all parties concerned.”
Written by the judges who cited it.
The opinion
On Petition for Rehearing.
Since the opinion was handed down in this case, the Commissioner of Internal Revenue has filed a petition for rehearing, claiming: (1) That this eourt is without power to remand the case for further hearing, as directed in the opinion; and (2) that there is no occasion for such remand because the record indicates that the taxes imposed upon Underwood were not based upon a gross income of $68,080.60, for the year ending February 29, 1924, and $44,666.15, for the year ending February 28, 1925, but upon amounts considerably less than those named in the respective years. So far as the first point is concerned, we have no doubt as to the correctness of the decision of the court, for the reasons therein stated.
As to the second point, the facts now stated are at variance with the position assumed by counsel on both sides in the oral argument before the" court. It then appeared to the court, from the opinion of the Board of Tax Appeals and from the brief of the government’s counsel, that no deduction from gross income had been allowed to the taxpayer for the expenses of conducting his architect’s office, and counsel for both parties were re *74 peatedly asked why such deductions had not been allowed; but they were at a loss to offer any explanation. The petition for rehearing now suggests that the amounts of the tax actually assessed against the taxpayer in each of the years in question is much smaller than would have been the case had the tax been assessed against gross rather than upon net income, and it is pointed out that in the deficiency letter of the Commissioner, the net income for the year ending February 28,1925, was given as $32,677.11, thus indicating that some deduction had been made from the gross amount of $44,666.15. Hence it is argued that no occasion exists for a rehearing of the case by the Board of Tax Appeals. The deficiency letter does not show the net income for the year ending February 29, 1924. It may be inferred from the figures now submitted that the tax was calculated in each year on a sum less than the gross income of the taxpayer, but the record does not contain sufficient information to enable us to reach this conclusion with certainty. We therefore adhere to the opinion already handed down, based as it was in this respect upon concessions made by counsel at the argument. If it shall appear at a rehearing of the ease by the Board that proper deductions for expenses have been allowed, the former decision of the Board may be reaffirmed; but if such deductions have not been allowed, the determination of the Board should be altered to include them.
Petition for rehearing denied.