William W. Porter was a subscriber in the sum of $75,000 to the fund described in our opinion handed down this day in No. 199, Burnet v. Houston, 283 U.S. 223, 51 S.C.t. 413, 75 L. Ed. 991. The facts in the present case are the same except that the Commissioner of Internal Revenue first approved the deduction and allowed a claim for refund of the proportional part of the tax, and then some time later reopened the case, disallowed the deduction, and redetermined the tax. The Court of Appeals sustained the power of the Commissioner upon the authority of McIlhenny v. Commissioner of Internal Revenue, 39 F.(2d) 356; and was clearly right in doing so. That court, however, upon the main point, following its decision in the Houston Case, reversed the determination of the Board of Tax Appeals in favor of the government. 39 F.(2d) 360. This is contrary to our decision in No. 199, and upon that authority the judgment is reversed.
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