Opinion of the Court 131 C. Cls. tion 312 (i). It appears rather that the Career Compensation Act was intended to confirm the rights granted by section 312 (i) of the Officer Personnel Act of 1947, supra. However, it is not necessary to decide that question in this particular case because as we construe the record it appears manifest that plaintiff's disability was "found to exist as a result of a physical examination given in connection with effecting a * * promotion***" It is true that by orders dated September 26, 1949, plaintiff was ordered from his duty station at the United States Submarine Base, New London, Connecticut, for medical treatment at the United States Naval Hospital, St. Albans, New York, with a diagnosis of pituitary basophilism for a period of two months' treatment. By the pleadings the defendant admits that the plaintiff while serving on active duty as lieutenant commander, United States Navy, was selected, and that the selection was approved by the Selection Board on November 1, 1949, for promotion to the grade of commander, United States Navy, and that on January 26, 1950, he was examined for promotion by a board of medical examiners and found not physically qualified for promotion. On December 21, 1949, the Commanding Officer, United States Naval Hospital, St. Albans, New York, advised the Chief of Naval Personnel that plaintiff would probably be retired, and recommended that plaintiff be detached from his duty station for continued treatment for an indefinite period. On January 24, 1950, the plaintiff was authorized to appear before the Physical Evaluation Board, Third Naval District, on January 27, 1950, or as soon thereafter as might be practicable. The report from the United States Naval Hospital at St. Albans, New York, recites that pursuant to the instructions the plaintiff appeared before the Board of Medical Examiners on the 26th of January 1950, for examination to determine physical fitness for promotion to the next highest grade. These orders for physical examination and the appearance of plaintiff for that purpose, and the detachment 91 Syllabus from duty on the 13th day of January 1950, in order to continue treatment, and an order for retirement effective April 1, 1950, are all so close together as to be part and parcel of one continuous transaction, and taken together almost preclude any other reasonable conclusion than that plaintiff's disability was found to exist as a result of a physical examination given in connection with effecting his promotion. Under the terms of either of the disputed provisions, or by construing them both together, plaintiff is entitled to retirement with retired pay based on the rank of commander, United States Navy, from April 1, 1950. Plaintiff's motion is granted, and defendant's motion is denied. Entry of judgment is suspended pending the filing of a report by the General Accounting Office showing the amount due plaintiff in accordance with this opinion. This is a continuing claim. LARAMORE, Judge; MADDEN, Judge; WHITAKER, Judge; and LITTLETON, Judge, concur. THE OHIO POWER COMPANY v. THE UNITED STATES [No. 218-54. Decided March 1, 1955.]* On Motions For Summary Judgment Excess profits tax; accelerated amortization of emergency facilities under Section 124 of the Internal Revenue Code.-In a suit to recover claimed overpayment of income and excess profits taxes for the years 1943, 1944, and 1945, it is held that plaintiff is entitled to recover. Defendant's motion for summary judgment is denied. Judgment suspended awaiting a stipulation as to the amount due in accordance with the opinion of the court. Internal Revenue 924 Same; "Necessity Certificate" for plant expansion.—Following the opinion in Wickes Corporation v. United States, 123 C. Cls. 741, it is held that the limitation to 35 percent in the "Necessity Certificate" was invalid, as contrary to the statute. *Defendant's petition for writ of certiorari denied October 17, 1955. Opinion of the Court 131 C. Cls. Mr. N. Barr Miller for the plaintiff. Messrs. Miller, Haynes, Tyree and Sheppard were on the brief. Mr. Homer R. Miller, with whom was Mr. Assistant Attorney General H. Brian Holland, for defendant. Mr. Andrew D. Sharpe was on the brief. MADDEN, Judge, delivered the opinion of the court: The plaintiff sues to recover $5,885,388.22 which it claims it overpaid in income and excess profits taxes for the years 1943, 1944 and 1945. The plaintiff is an Ohio corporation which as a public utility manufactures and sells electrical energy. During World War II the demand upon it for additional service made it necessary for it to expand its facilities. Pursuant to Section 124 of the Internal Revenue Code it filed with the Secretary of War, who was then the proper certifying authority, an application for a Necessity Certificate with respect to the construction of a new plant, and a transmission line from the new plant to one of its substations 55 miles away. The plaintiff claimed a cost of $11,246,256.54 for purposes of amortization. The authority to grant Necessity Certificates was, in December 1943, transferred to the Chairman of the War Production Board, and in October 1945, was again transferred to the Administrator of the Civilian Production Administration. In November 1944, a Necessity Certificate was issued, addressed to the Commissioner of Internal Revenue, and relating to the plaintiff's new construction. It certified that the facilities were necessary in the interest of national defense during the emergency period, up to 35 percent of the cost attributable to the construction thereof. Because of the 35 percent limitation in the Certificate, the Commissioner of Internal Revenue permitted the rapid amortization of only 35 percent of the plaintiff's costs of construction, instead of 100 percent of those costs which, the plaintiff claims, he should have permitted. In the case of Wickes Corporation v. United States, 123 C. Cls. 741, we had the same problem. We discussed at length the history and the policy of the statute permitting rapid amortization. We concluded that the attempted 35 95 Dissenting Opinion by Judge Jones percent limitation inserted in the Necessity Certificate in that case was invalid, as a contradiction of the statute. What we said in that case is applicable to this one. Defendant's motion for summary judgment is denied and plaintiff's motion is granted. The plaintiff is entitled to recover, with interest as provided by law. Entry of judgment is suspended to await the filing by the parties of a stipulation showing the amount due. It is so ordered. LARAMORE, Judge; WHITAKER, Judge; and LITTLETON, Judge, concur. JONES, Chief Judge, dissenting: I think the provisions of the Internal Revenue Code clearly authorized the executive officials to limit the amount of rapid amortization deduction. Section 124 (f) (1) of the Code is as follows: (f) Determination of adjusted basis of emergency facility. In determining, for the purposes of subsection (a) of subsection (h), the adjusted basis of an emergency facility (1) There shall be included only so much of the amount otherwise constituting such adjusted basis as is properly attributable to such construction, reconstruction, erection, installation, or acquisition after December 31, 1939, as either the Secretary of War or the Secretary of the Navy has certified as necessary in the interest of national defense during the emergency period, which certification shall be under such regulations as may be prescribed from time to time by the Secretary of War and the Secretary of the Navy, with the approval of the President. [26 U. S. C. 124, 1952 Ed.] Section 124 (f) (3) (C) of the Code provides specifically that no amortization deduction shall be allowed in respect of any emergency facility for any taxable year "unless a certificate in respect thereof under paragraph (1) shall have been made ***” Since the statute clearly authorizes the limitation, and the certificate actually limits the amortization to the 35 percent and that amount has been allowed, I would dismiss the Syllabus 131 C. Cls. petition. United States Graphite Co. v. Harriman, 71 F. Supp. 944; United States Graphite Co. v. Sawyer, 176 F. 2d 868 (certiorari denied). In accordance with the foregoing opinion and on a stipulation by the parties showing the amount due thereunder, judgment for the plaintiff was entered March 30, 1955, as follows: Now, therefore, it is ordered this thirtieth day of March 1955, that judgment be and hereby is entered for plaintiff in the following sums together with interest on each as provided by law: 1943-Two million, sixty-five thousand seven hundred 1944-One million, two hundred fifty-one thousand JOHN WRIGHT REGISTER v. THE UNITED STATES [No. 49972. Decided March 1, 1955.] On the Proofs Pay and allowances; Navy Reserve officer discharged for disability is entitled to retirement instead.-Plaintiff, an officer in the Naval Reserve, ordered to active duty on February 25, 1944, and relieved from active duty for physical disability on February 16, 1947, and subsequently discharged for physical disability on November 19, 1947, brings suit for active duty pay and allowances from the date he was relieved from active duty for physical disability and for retired pay after his discharge. It is held that plaintiff is entitled to recover. Armed Services 13.5 (5) Same; preexisting condition aggravated by service.-Where a preexisting condition was aggravated by his service, whether an officer's incapacity for active service is an incident of the service, under the statute, depends on the circumstances of the case. Armed Services 13.5 (5) |