Before KALODNER, HASTIE and FORMAN, Circuit Judges.
This is a petition to review the determination of the Tax Court in a proceeding brought upon applications for relief under Section 722 of the Internal Revenue Code of 1939, Excess Profits Tax Act of 1940, as amended, 26 U.S.C.A. Excess Profits Taxes, § 722,*fn1 with respect to the petitioner's excess profits taxes for the years 1940 through 1944. The cause was submitted to the Tax Court upon the severed question as to whether relief under Section 722(b) (4) for the years 1940, 1941, and 1942, was barred by limitation, it being agreed that if the issue was resolved against the petitioner, it would abandon its claims to relief under Section 722(b) (2), (3), and (5). The Tax Court held against the petitioner, 32 T.C. 60, and this petition followed, jurisdiction being asserted upon Section 7482 of the Internal Revenue Code of 1954, 26 U.S.C.A. § 7482.
Petitioner's claim for relief under Section 722(b) (4) was asserted by amendment after the statutory period to its timely filed applications for relief under Section 722(b) (2), (3) and (5). It contends that the amendment must be allowed because the facts upon which it was based would necessarily have been ascertained by the Commissioner in a proper consideration of its timely filed applications; that the Commissioner's regulation did not prohibit the introduction of additional evidence in support of a timely filed claim under Section 722; and that in any event, the objection of untimeliness was waived by the Commissioner.
The Commissioner, without any concession to the petitioner, has moved in this Court to dismiss the petition for review on the ground of lack of jurisdiction by reason of Section 732(c) of the Internal Revenue Code of 1939, ch. 10, § 9, 55 Stat. 26 (1941), as amended, 26 U.S.C.A. Excess Profits Taxes, § 732(c), which reads as follows:
"(c) Finality of determination. If in the determination of the tax liability under this subchapter the determination of any question is necessary solely by reason of section 711(b) (1) (H), (I), (J), or (K), section 721, or section 722, the determination of such question shall not be reviewed or redetermined by any court or agency except the Board [Tax Court]."
In this connection, it may be noted that pursuant to the provisions of Section 732(d), the determinations of any division of the Tax Court involving any question arising under Section 722 with respect to any taxable year shall be reviewed by a special division of the Tax Court constituted by the presiding judge and consisting of not less than three judges of the Tax Court. The decisions of such special division are not reviewable by the Tax Court and are deemed decisions of the Tax Court. This procedure was followed in the instant case.
The petitioner resists the motion to dismiss on the grounds that (1) the restriction imposed by Section 732(c) has been removed by the Internal Revenue Code of 1954, and (2) the determination of the question here involved is not necessary solely by reason of Section 722.
As to the first ground, we are satisfied that Section 732(c) has not been repealed by the Internal Revenue Code of 1954. The point was given particular attention in Brown Paper Mill Co. v. Commissioner, 5 Cir., 1958, 255 F.2d 77, 79-80, certiorari denied 358 U.S. 906, 79 S. Ct. 229, 3 L. Ed. 2d 277; Patent Button Co. of Tenn. v. Commissioner, 6 Cir., 1958, 256 F.2d 726, 727-728; Crowell-Collier Pub. Co. v. Commissioner, 2 Cir., 1958, 259 F.2d 860, 863, certiorari denied 358 U.S. 928, 79 S. Ct. 314, 3 L. Ed. 2d 302. In addition, the Section was applied by us without further mention in L. E. Carpenter & Co. v. Commissioner, 1959, 264 F.2d 230; see also, Bradford Machine Tool Co. v. Commissioner, 6 Cir., 1958, 260 F.2d 950, certiorari denied 359 U.S. 909, 79 S. Ct. 585, 3 L. Ed. 2d 573; Helms Bakeries v. Commissioner, 9 Cir., 1959, 263 F.2d 642, certiorari denied 360 U.S. 903, 79 S. Ct. 1285, 3 L. Ed. 2d 1255; United States Rubber Co. v. Commissioner, 2 Cir., 1960, 274 F.2d 307; Puget Sound Pulp & Timber Co. v. Commissioner, 9 Cir., 1960, 277 F.2d 803, certiorari denied 81 S. Ct. 71.
With respect to the question of the application of Section 732(c), we are inclined to agree with Brown Paper Mill Co. v. Commissioner, supra, 255 F.2d at pages 80-81, that while the matter is not free from doubt it would seem more in keeping with the intent of the statutory scheme to hold that the determination of the Tax Court is not reviewable in the circumstances here presented: the questions of law and fact require solution solely because of Section 722.*fn2 As was said in Standard Hosiery Mills, Inc. v. Commissioner, 4 Cir., 1957, 249 F.2d 469, 471:
"and the contention as to equitable estoppel is that the Commissioner is estopped from refusing to apply to the tax years in question the determination made under 722 for the year 1941. No question under any provision of the tax laws other than 722 is involved and no principle of general law or equity is brought into question except as applied to relief asked under section 722. The determination of any question raised by taxpayer is necessary, therefore, 'solely by reason of section 722.' In the absence of that section, taxpayer would not be entitled to any relief or to have the courts consider any of the questions which it has raised, all of which relate to relief sought under that section."
In particular, whether the petitioner's amendment adding a claim under Section 722(b) (4) to his timely presented claims under other subsections of 722(b) constituted a new claim involved application and construction of the complex provisions of those subsections and the regulations adopted thereunder. Similarly, whether the Commissioner's investigation of the timely claims should have disclosed the facts of the late claim, whether petitioner was merely presenting additional evidence in support of a single ground of relief, and whether the Commissioner waived the specificity requirements, are all questions which turn upon Section 722, although, as we have said, it is sufficient to deny review that these are questions required to be determined only because of Section 722.
Notwithstanding our conclusion that this petition must be dismissed, we are constrained to add that in any event we would affirm the decision of the Tax Court. The background is fully stated in the opinion of the Tax Court and need not be repeated here. The Tax Court found that the petitioner's claim for relief under Section 722(b) (4) was asserted after the period of limitations, that it was materially different from the claims which were timely asserted, and that the specific claims asserted, together with the material submitted within the statutory period, would not direct the Commissioner's attention to the alleged changes underlying the 722(b) (4) claim. It found as fact that the Commissioner at all times adhered to ...