
    BURNET, COMMISSIONER OF INTERNAL REVENUE, v. PORTER et al., EXECUTORS.
    No. 203.
    Argued March 12, 1931.
    Decided April 13, 1931.
    
      
      Assistant Attorney General Youngquist, with whom Solicitor General Thacker and Messrs. Sewall Key and A. H. Conner, Special Assistants to the Attorney General, Erwin N. Griswold, and Clarence M. Charest, General Counsel, and Allin H. Pierce, Special Attorney, Bureau of Internal Revenue, were on the brief, for petitioner.
    
      Mr. Walter Lee Sheppard, with whom Mr. William C. Alexander, Jr., was on the brief, for respondents.
   Me. Justice Sutherland

delivered the opinion of the Court.

William W. Porter was a subscriber in the sum of $75,000 to the fund described in our opinion handed down this day in Burnet v. Houston, ante, p. 223. 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 the Houston case, and upon that authority the judgment is

Reversed.  