OPINION.
Murdock :
This case is similar in some respects to J. A. Dougherty's Sons, Inc., 42 B. T. A. 892, and Estate of David Davies, 42 B. T. A. 965. The Dougherty's Sons, Inc., case has recently been reversed, 121 Fed. (2d) 700. However, the present case has points of difference from the Dougherty's case and is like some other cases of the Board which have been affirmed by other Circuit Courts. It is not a case of an unconstitutional tax, but one of mistake in thinking that a taxing act applied to this petitioner. Inland Products Co., 10 B. T. A. 235; affd., 31 Fed. (2d) 867. Cf. Mary W. Leach, 16 B. T. A. 781; affd., 50 Fed. (2d) 371. The tax was never due and the efforts to collect it were all a mistake, as the court finally decided the law did not apply. The collector admitted his doubt after the decision on the demurrer. The petitioner, believing that no tax was due, ceased and refused to pay, and only made a closing accrual upon advice of counsel. The Commissioner determined that the 1937 taxes were not deductible from income as a properly accrued expense of that year. We hold, upon authority of the cases cited above, that he did not err.
Reviewed by the Board.
Decision will be entered for the respondent.
Smith dissents.