which we supplement by calling attention to others.* In regard to the present order it suffices to say: There was no misprision of a clerical officer; no new facts; no newly discovered evidence concerning former issues of fact; no failure in the court to enter the original order exactly as the court intended to enter it; even if the petition for the nunc pro tunc order had tendered an issue which interested the original parties (the railroad company and its creditors), no steps were taken by the aforetime receiver to have them join issue; the petition was heard ex parte; and as to the government all the matters in the District Court were res inter alios.

14

BOOTH, Judge, delivered the opinion of the court.14

The plaintiff is a major in the Army. From January 1, 1923, until August 25, 1923, he was stationed at Fortress Monroe, Va. During this period he was assigned and occupied government quarters in accord with his rank. On August 25, 1923, he was detached from duty at Fortress Monroe and detailed for duty in Washington, D. C. While in Washington, from August 25, 1923, to December 31, 1923, there being no government quarters available for his occupancy, he was paid and received $500 in cash as commutation of quarters. The plaintiff in making out his income tax return for 1923 included, under protest, as an item of his gross income, the rental value of the quarters occupied by him at Fortress Monroe and the $500 in cash received as commutation of quarters in Washington. Prior to filing his income tax return the plaintiff had consulted with the Commissioner of Internal Revenue with respect to the inclusion of the two items, and the Commissioner

*The cases cited by the court and counsel are omitted.

13 Suppose the directors of a corporation tell its president that they believe him entitled to additional compensation, but do not fix the amount. In 1912, following these conversations, the president overdraws his account with the corporation by $70,000. In 1914, the directors vote the president additional compensation of $50,000 for past years, which is credited to him on the corporate books. Does the president realize any taxable income? See Holbrook v. Moore, (1921) 293 Fed. 264, 4 Am. Fed. Tax R. 3638.

14 Part of the opinion is omitted.

ruled that they were income and must be returned as such, fixing the alleged fair rental value of the quarters occupied at $940. The total income tax due by reason of the inclusion of said sum of $1,440 was $21.89. This amount the plaintiff paid under protest, and thereafter filed in due form a claim for refund of the tax, which the Commissioner disallowed. This suit is to recover the tax so paid.

Section 213 of the revenue act of 1921 (42 Stat. 237) enumerates with precision the various modes of accumulation which constitute under the statute gross income. So far as pertinent to the present discussion it may be abbreviatedly reproduced as

follows:

"That for the purposes of this title . . . the term 'gross income' (a) includes gains, profits, and income derived from salaries, wages, or compensation for personal service (including in the case of the President of the United States, the judges of the Supreme and inferior courts of the United States, and all other officers and employees, whether elected or appointed, of the United States, Alaska, Hawaii, or any political subdivision thereof, or the District of Columbia, the compensation received as such) of whatever kind and in whatever form paid. . .

It is to be observed that the parenthetical clause of the foregoing section of the revenue law is susceptible to a construction. that Congress intended to impose upon the government officers mentioned an income tax on their "compensation received as such." Whether we assume the words "as such" intentionally modify compensation or officer, it is certain that they serve a purpose and were intended to make a distinction in dealing with the officers mentioned; otherwise they would not have been used. Jones v. Parker, 67 Tex. 76, 81. . .

What is or is not compensation is not always easy to determine in cases where one receives an annual salary and by reason. of the duties of his office is entitled to privileges and advantages sometimes discharged in money and at other times in kind. It is not new for this court to be confronted with the question. Under the long-established system of pay and allowances for officers of the Army and Navy, we have had oc-casion in numerous cases, involving almost every aspect of the

controversy, to determine the scope and effect of statutes upon the subject. At the outset it may be stated with unquestionable accuracy that the War Department, Congress, and the courts have recognized a distinction between pay and allowances. .

Congress annually appropriates certain sums for the executive department and likewise a travel allowance. Such appropriations have not been and are not charged against the President as compensation. Members of Congress receive certain allowances. This court determined with reference to mileage that the allowance was not part of their compensation. Wilson v. United States, 44 Ct. Cl. 428. A vast number of government employees receive traveling expenses and fixed sums in lieu of subsistence when away on government affairs. Clearly such allowances are for purposes of reimbursement. Each member of the Cabinet is furnished means of transportation at government expense. The Vice President is allowed a sum sufficient to procure and maintain an automobile. It is not even suggested that allowances of this character are compensation. In what respect, then, is the allowance of public quarters or commutation of quarters to an Army officer different in character from one intended as reimbursement? We are quite firmly convinced that not only are they not allowances of a compensatory character, but they are not income as well. It is common knowledge that the President of the United States receives as compensation $75,000 per annum. The compensation of federal judges is their fixed annual salary. Generally, and almost without exception, including the Army and Navy, the federal statutes fix a certain specified pay for each employee or officer of the government, known as his compensation. This is a fixed and definite sum annually appropriated for and to which the occupant of the office is by law fully entitled so long as he remains in office, and entitled to whether sick or well, unless separated from the office, and it is this sum, this annual salary, to which Congress and all others refer when they speak of the officer's compensation, and manifestly, unless there is some qualification of the term, some legislative expression that Congress intended to reach out and tax what has continuously and notoriously been regarded as an allowance, distinct from compensation, the just inference is an intent to limit the gross income of the officers mentioned to their pay proper, their fixed compensation. We have said that we did not be

lieve the allowance of quarters or commutation thereof to an officer of the Army is income.

As long as we have had an Army, officers of the Army have not only been permitted, but compelled, to occupy public quarters when the same were available. This practice, custom, and requirement has prevailed for so long a time, both in this country and abroad, that it would be difficult to establish the date of its origin. The very first Army Regulations issued in the United States, after the organization of the Army, made provision for this identical thing, and without interruption as to essential features, it has continued from that day to this. No question as to the discontinuance of the requirement has ever been the subject of agitation, and Congress, without hesitation, has made, and continues to make, available each year a sum of money sufficient to pay commutation of quarters and provide public quarters for officers and enlisted men of the Army as well. In the earlier periods of our history the allowance of quarters was provided for in Army Regulations. Officers were assigned a fixed number of rooms according to their rank, and, if public quarters were not available at the post, fort, or station, suitable quarters were rented, or, as the regulations stated, "hired" by the Quartermaster's Department and the expenses incurred paid out of the general appropriation for the Army. Subsequently it developed that not infrequently there was no one in authority at the post or station to hire quarters when the same were not available, and to obviate this difficulty the regulations authorized the officer himself to procure quarters and receive in return "a reasonable commutation in money." Without going further into detail, it is sufficient to observe that Congress has uninterruptedly recognized the right of officers to public quarters when available at his post or station, and when not so available, his right to commutation of quarters in money. Varying changes have from time to time been adopted as to the conditions under which the allowances should be made, but the substantial right itself has continued unimpaired. A complete and sequential history of the law and regulations made in pursuance thereof is set forth in the stipulated findings of fact and need not be repeated here.

The origin and continuance of the Army custom, as well as the law of the Army itself, indicate beyond a doubt that

public quarters for the housing of enlisted men and officers is as much a military necessity as the procurement of implements of warfare or the training of troops. Congress has appropriated vast sums of money to establish permanent military posts and stations throughout the country, and in not one but all Army appropriations provision is of course made for the erection of barracks, officers' quarters, and every other necessary building, to maintain, house, and properly care for the enlisted men and officers of the post or station. We need not assert that an officer's duties require his physical presence at his post or station; his service is continuous day and night; his movements are governed by orders and commands, by military law; troops are to be trained, discipline is to be enforced, and more than one exigency of the military service requires the officer to live with his command. In addition to what has been said, many officers may be and are required to keep and render a variety of official reports, perform certain prescribed military duties during both day and night. All these and many more considerations, of which we confess an unfamiliarity, make it imperative upon the part of the government to provide housing facilities for troops and officers of the Army, if an army is to be maintained at all. Therefore, it seems to us that military quarters for both the enlisted men and officers of the Army are no more than an integral part of the organization itself. They are, so to speak, units of the military plant, the indispensable facilities for keeping the Army intact and maintaining it as such, as much so as the crude shelter provided for a watchman at a railroad station, or the lonely habitation of a lighthouse keeper. The officer is not paid a salary and furnished a house to live in for his services; he is, on the contrary, paid a salary to live in the quarters furnished. But we are told that if the government did not furnish the officer quarters he would have to incur the expense of procuring the same. Such an argument is absolutely devoid of merit. The inherent organization of the military establishment of the United States refutes it. Imagine a military post uninhabited by officers. Speculation as to possibilities and conditions in the face of long recognized and the firmly established status and organization of the Army are indeed idle. An Army officer's rights and privileges under the law are not to