Mutual Lumber Co. v. Commissioner , 16 T.C. 370 ( 1951 )

Black, J.,

dissenting: I agree to that part of the majority opinion which says:

* * * The only error relating to excess profits tax alleged in the petition is that based upon the application for relief under section 722 and that one has been waived. Thus, there is no assignment of error to support the decision which the petitioner seeks. Issúes are raised by pleadings, not by motions, and the Court has nothing before it for decision such as the motion suggests. Rule 7, Rules of Practice before the Tax Court of the United States; [Citing cases.]

Having thus held, it is my view that the opinion should stop there and render a decision supporting the Commissioner in denying relief under section 722. The opinion, however, does not stop there but goes on to hold that where a taxpayer has appealed from a deficiency notice denying his claim for relief under section 722, he cannot raise any other issues than those which relate to the denial of section 722 relief. In the instant case, petitioner has not raised any other issue and why should we decide that no such issue can be raised. In my judgment, it will be soon enough for us to decide that question when we come to it in a case where a taxpayer does undertake to raise such an issue. It is not necessary to decide such an issue now, and being unnecessary, I think it is unwise to do so.

I, therefore, dissent from that part of the opinion which considers the question whether so-called standard issues can be raised in a proceeding based solely on a deficiency notice which denies section 722 relief.

ARUNdell, Harron, Johnson and Raum, JJ., agree with this dissent.