The opinion
AUGUSTUS N. HAND, Circuit Judge
(dissenting).
Under the prevailing opinion this court would seem to be given a purely technical power of review only in order to satisfy a conventional aspiration for such a procedural step rather than to afford relief to aggrieved litigants. I am not satisfied that the dice are so heavily loaded against any decision which differs from the Tax Court that our jurisdiction is rendered almost futile, nor do I believe that the opinions of the Supreme Court call for complete abdication on our part.
The determination of the Tax Court while disapproved of by the prevailing opinion is nevertheless affirmed for lack of power to give any relief. It purports to tax an accumulation of income — though there in fact was none — but, on the contrary, a deficit in capital during the taxable year. Such a result contravenes the purposes of the Congressional legislation while following a slavishly literal reading of the statute. In my opinion the Dobson decision (Dobson v. Com’r, 320 U.S. 489 , 64 S.Ct, 239 , 88 L.Ed. 248 ) does not preclude us from determining such a general question of law as whether the statute covers distributions in liquidation where no earnings or profits exist. Such lack of power would render appeals to this court meaningless and, if our view of the interpretation of the statute is correct, tragic for the taxpayer in the present case.
I think that the order of the Tax Court should be reversed.