Commissioner v. Hughes Tool Co. , 160 F.2d 540 ( 1947 )

HOLMES, Circuit Judge.

When this case was here before, it was held that the taxpayer was entitled to the credits claimed under Section 26(c), 26 U.S. C.A. Int.Rev.Code, § 26(c). The dissenting judge was of opinion that Section 26(c) provided an exemption “such as must be strictly construed against the taxpayer claiming the benefits thereof.” He thought that a surviving corporation should not also receive “special tax benefits conferred upon the extinguished corporation by Section 26(c) (1).” Hughes Tool Co. v. Commissioner, 5 Cir., 147 F.2d 967. Certiorari was not applied for, and the judgment of the court became final.

The majority of the court as now constituted does not agree with the holdings of the original opinion, but since that judgment became a final one, we are not now at liberty to reopen the case and redetermine the very issues previously decided,¹ especially since the Supreme Court may now grant certiorari if it sees fit.

The Tax Court redetermined taxpayer’s liability in strict accordance with this court’s opinion and mandate and we must, therefore, concur in the affirmance of its decision.

Affirmed.

1 Cf. Thornton v. Carter, 8 Cir., 109 F.2d 316.