Hardaway Motor Co. v. Commissioner of Internal Revenue

HUTCHESON, Chief Judge (concurring).

The main opinion is a remarkably lucid exposition of the unusually complicated matters discussed in it and is completely convincing as to the correctness of its teachings and their result.

Because, however, the all out use by the appellant of the legislative history of Sections 722 and 710(a) (5) in its brief illustrates the dangers inherent in resorting to such aids to construction when there is no necessity for such resort, I add a word.

As the opinion points out with complete clarity, the controlling question in this case is when the one year limitation provided in Sec. 710(a) (5) ¹ commences to run, and the answer to it depends upon a determination of what is the heart of this case, when the “excess of the reduction in tax [is] finally determined”. To support its claim, “that this final determination occurred” when the excess profits tax council made its determination, appellant quotes many times in its brief with emphasis supplied by it this language from Report 1383 of the Senate Committee on Finance:

“Section 3 of the Joint Resolution gives the commissioner at least one year after the final determination of application for relief under Sec. 722 in which to assess the unpaid tax which was deferred under Sec. 710(a) (5).”

Relying on this statement, from which the argument proceeds and to which it is ever returning, the appellant seeks to read the statute as though the italicized words appeared in it. They do not, and the fact that they do not, both pinpoints the fallacy and the incorrectness of its contention and argument that congress, in the use in Sec. 710(a) (5) of the words, “such final determination”, has departed from their recognized and established use in income tax law in connection with tax determination.

I think it is a strained and unnatural construction to give to the words the statute uses the meaning and effect of the italicized words in the committee report, on and from which appellant’s argument proceeds.

1 . “Notwithstanding any other provision of law or rule of law, to the extent that any amount of tax remaining unpaid pursuant to this paragraph is in excess of the reduction in tax finally determined under section 722, such excess may be assessed at any time before the expiration of one year after such final determination.”