The question involved in this consolidated proceeding is whether the mitigation provisions of §§ 1311-1315 of the *99 Internal Revenue Code of 1954 permit assessment and collection of certain deficiencies which would otherwise be barred by the statute of limitations.

The relevant facts are established by stipulation of the parties (pages 33 through 39, Tr. of R.) and pertinent matters set forth as Findings in Snyder v. Westover (U.S.D.C.S.D.Calif., 1952) 107 F.Supp. 363 , and Snyder v. Riddell (U.S.D.C.S.D.Calif., 1957) 52 A.F.T.R. 1776 . It was further agreed that the stipulation was not intended to be in conflict but was subject to the decisions and opinions of this court in Snyder v. Westover (C.A. 9th, 1954) 217 F.2d 928 ; Snyder v. Riddell (C.A. 9th, 1958) 252 F.2d 23 , and Snyder v. United States (C. A. 9th, 1958) 260 F.2d 826 .

A summary of the facts relevant to these proceedings is as follows:

It is agreed by the parties that the assessment and collection of the deficiencies as against Geraldine and Oscar are barred by the statute of limitations unless they qualify as “adjustments” timely made within the mitigation provisions of §§ 1311-1315 of the 1954 Code, the pertinent portions of which are set forth in footnote to this opinion. 1 These provisions constitute an exception to the *102 one year statute of limitations involved and must be affirmatively pleaded and proved by the party relying thereon when the statute of limitations is relied on, as in this case by Geraldine and Oscar, as a bar to assessment of the deficiency. J. C. Bradford, 34 T.C. 1051 (1960) and cases cited therein. The respondent Commissioner relies on § 1312 (3) (A) as to the circumstances under which the adjustment is authorized in the case at bar asserting that the "determination”, as defined in § 1313(a) (1), was the decision of this court filed on January 27, 1958, in the second Rid-dell suit on the theory that said decision was the “determination” which required the exclusion from Sam's income for 1945 of Geraldine’s one-fourth partnership share with respect to which share tax was paid by Sam and which one-fourth share was determined to have been erroneously excluded from the gross income of Geraldine, who at the time was a partner of Sam and therefore a related taxpayer.

It appears from the provisions of §§ 1311-1315 that if there is a "determination”, described in § 1312, and on the date of such "determination” correction of the effect of the error therein described is barred by operation of law then the error can be corrected by adjustment made in the manner specified in § 1314, to wit:

§ 1311(b) provides for the adjustment, if assessable under § 1314 as a deficiency, as in the case at bar, to be made only *103 if the “determination” adopts a position maintained by the taxpayer (Sam), with respect to whom the “determination” is made, which is inconsistent with the erroneous exclusion relied on in § 1312. In the case at bar this would be the exclusion from the gross income of Sam of Geraldine’s partnership share for the year 1945, which share of Geraldine was erroneously excluded from the reported income of Geraldine and Oscar as determined by this court. The date of said “determination” is in controversy. A “determination” is defined as a decision of the tax court or a judgment, decree, or other order by any court of competent jurisdiction which has become final. It is agreed by the parties that so far as concerns the instant case the term “related taxpayer”, as used in the applicable sections, concerns the relationship of “partner.” The “adjustment” which may be made under specified circumstances shall not be made with respect to the related taxpayer (Geraldine) unless she was so related to the taxpayer (Sam) at the time the latter first maintained the inconsistent position in a return or claim for refund or at the time of “determination.” The tax court states in its opinion (page 52, Tr. of R.):

When this “determination” was made is one of the material issues in the case, petitioner Geraldine contending that the “determination” was made by the decision of this court in the Westover suit, which was entered on December 20,1954, and became final on March 20, 1955, which, if true, would make ineffective the notice of deficiency sent to Geraldine on April 27, 1959, as being too late. The Commissioner, on the other hand, as stated above, asserts that the “determination” was the decision of this court in the second Riddell suit, filed on January 27, 1958, which became final on April 27, 1958.

The court now considers whether it did, in the Westover suit, 217 F.2d 928, 929 , malee the “determination” material in the instant matter; that is, did this court there determine that Geraldine was a partner of Sam in 1945 and that her partnership share in gross earnings of Car Company for that year was properly assessed to her and said share was erroneously excluded from her 1945 tax. This court, in the Westover case, discussed in detail the history and formation of the partnership, including Geraldine as a partner, and points out at length that the trial court had erred in holding Geraldine not a member of the partnership for tax purposes.

Let us assume the Commissioner’s argument (Pages 20-21, Br. for Com.) that a judgment determining tax for the year actually in question would be a “determination” as well as the decisions of the courts on identical issues in the years immediately prior or subsequent. H. T. Hackney Co. v. United States, 78 F.Supp. 101 , 111 Ct.Cl. 664 , and Rigdon v. United States, 197 F. Supp. 150 (S.D.Calif.). The first “determination” should put the government on notice and to allow it to await a possible second “determination” would not appear to comply with the observation of the court that the mitigation provisions were based upon the principle that corrective adjustments are not to impair the essential function of the statute of limitations. See opinion of tax court, page 53, Tr. of R., and United States v. Rushlight, 9 Cir., 291 F.2d 508 at 519-520 .

The decision in the second Riddell case, 252 F.2d 23 , did not require refund of the 1945 tax but remanded the case *104 to the district court for further proceedings “in accordance therewith” as the trial court might deem necessary. The portion of the 1945 tax paid by Sam was not ordered refunded to Sam because he owed it in connection with an uncontested matter. As to the determination of the partnership in 1945 and consequently the consideration of the 1945 tax, this court, at pages 24 and 25 of its opinion in the second Riddell case, states:

At page 25 of the opinion, the court further observes:

This court, in the second Riddell case and also in the interest suit, 260 F.2d 826 , observes in legal effect that in the Westover suit it first made the “determination” pertinent in this case.

For the reasons set forth hereinabove, the court concludes that its decision in the Westover case, 217 F.2d 928 , decided on December 20, 1954, determined that Geraldine was a partner of Sam in 1945 and that her share of income of Car Company for 1945 was not therefore income of Sam, and that suit was the “determination” material in this case. This “determination” being more than one year prior to the notices of deficiency sent to Geraldine and Oscar (April 27, 1959), it follows that the notices were not served in time to perfect the government’s case.

The Commissioner contends that the Westover suit did not determine Sam’s liability for the 1945 tax because the said taxes had not been paid at the time of the judgment in that suit and that this was true although “ * * * the Westover suit may have been dispositive of the law applicable to the facts of Sam’s 1945 return * * * ” and that there was no “determination” in this case within the code sections concerned until this court, in the second Riddell case, applied the “law to the facts.” This theory is not in accordance with the above noted finding of this court as to the date of the pertinent “determination” and will not be followed in this case.

Another issue of importance is, when did Sam first maintain the “inconsistent position” referred to hereinabove. The Commissioner takes the position that Sam's “inconsistent position” was taken in 1946 when he filed his income tax return for 1945 wherein he asserted that Geraldine was a partner of Car Company, at which time Geraldine was determined to have been a partner and therefore a related taxpayer as to Sam.

Geraldine and Oscar assert that neither was a related taxpayer at the time Sam first maintained a position inconsistent with the “erroneous exclusion” which was made in 1950. They urged that Geraldine and Sam took consistent positions with respect to the partnership interest in their returns for the year 1945, and that there was no inconsistent position maintained by Sam until Sam filed his claim for refund in March, 1950. It is to be noted that at this time neither Geraldine nor Oscar was a partner or otherwise a related taxpayer with respect to Sam.

Sam, in response to the assessments of the Commissioner, paid said assessments for the years 1943, 1944 and 1946 in the year 1959, and in September and October, 1959, made installment payments to Westover on the 1945 tax as *105 sessed, and in November and December, 1949, and January, 1950, made installment payments to Riddell on the said 1945 tax. These five payments total $5,047.12 but were only a part of the tax assessed for 1945.

On March 13, 1959, Sam filed claim for refund of all additional taxes paid for the years 1943, 1944, 1945 and 1946 on the grounds that Geraldine was a partner during those years. This was the first active inconsistent position maintained by Sam as to the “erroneous exclusion” (refund to Geraldine and Oscar by the government in September, 1949). True, Sam had maintained this position of partnership with Geraldine in 1946, when their 1945 tax was filed, but the court does not conclude that the act on-the part of Geraldine and Oscar in accepting the tax refund for 1948 constituted an inconsistency maintained by Sam although it was inconsistent with the position of Sam in 1946, It is active inconsistency by Sam which is required. As stated by the tax court in its opinion (p. 53, Tr. of R.):

The filing by Sam in 1946 of the tax return for 1945 does not appear to be active inconsistency as contemplated by the pertinent code sections and the ruling of the Treasury Department in 1939 in 1 C.B. (Part 2) 779, as quoted hereinabove. It follows that the required existence of the partnership relation when the inconsistency was first maintained by the taxpayer (Sam) has not been met since the parties were not partners at any time during the period 1947 to 1950, inclusive.

It is the opinion of the court that the first maintained position of Sam within the meaning of the code which was inconsistent as required, must have been inconsistent with a position of Geraldine which she had taken prior to the time Sam maintained his position; that is, that Sam’s position, to be inconsistent, must refer to a position of Geraldine at that time in existence. It follows that the inconsistent position of Sam as contemplated by § 1311(b) (3) of I.R.C.1954, was not taken by Sam until March, 1950, when he filed his claim for refund of taxes for the years 1943-1946, inclusive, at which time his position was inconsistent with that of Geraldine and Oscar taken in September, 1949, by accepting the refund of the 1945 tax and at which time Sam and Geraldine were not partners.

By reason of the foregoing rulings of the court, there is no occasion for the court to determine (1) whether the application by the Commissioner of the refund ordered by the Westover suit to the unpaid assessment for 1945 was payment of the tax within the provisions of § 6402(a), I.R.C.1954, or (2) whether respondent Oscar was a “partner” thus being a “related taxpayer” within the mitigation provisions of §§ 1311-1315, I.R.C.1954.

The decision of the tax court, as to petition of Geraldine, to wit, “that there is a deficiency in income tax due for the taxable year 1945 in the amount of $1,-138.54,” is reversed.

The decision of the tax court, as to petition of Estate of Oscar Weinreich, deceased, et al., to wit, “that there is no deficiency in income tax for the taxable year 1945,” is affirmed.

. “§ 1311. Correction of error

“(a) General Rule. — If a determination (as defined in section 1313) is described in one or more of the paragraphs of section 1312 and, on the date of the determination, correction of the effect of the error referred to in the applicable paragraph of section 1312 is prevented by the operation of any law or rule of law, other than this part and other than section 7122 (relating to compromises), then the effect of the error shall be corrected by an adjustment made in the amount and in the manner specified in section 1314.

“(b) Conditions necessary for adjustment. — -

“(1) Maintenance of an inconsistent position. — Except in cases described in paragraphs (3) (B) and (4) of section 1312, an adjustment shall be made under this part only if—

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“(B) in ease the amount of the adjustment would be assessed and collected in the same manner as a deficiency under section 1314, there is adopted in the determination a position maintained by the taxpayer with respect to whom the determination is made, and the position maintained by the Secretary or his delegate in the case described in subparagraph (A) or maintained by the taxpayer in the case described in subparagraph (B) is inconsistent with the erroneous inclusion, exclusion, omission, allowance, disallowance, recognition, or nonrecognition, as the case may be.

“(2) Correction not barred at time of erroneous action. — ■

“(A) Determination Described in section 1312(3) (B). — In the case of a determination described in section 1312(3) (B) (relating to certain exclusions from income), adjustment shall be made under this part only if assessment of a deficiency for the taxable year in which the item is includible or against the related taxpayer was not barred, by any law or rule of law, at the time the Secretary or his delegate first maintained, in a notice of deficiency sent pursuant to section 6212 or before the Tax Court of the United States, that the item described in section 1312(3) (B) should be included in the gross income of the taxpayer for the taxable year to which the determination relates. *****

“(3) Existence of relationship. — In case the amount of the adjustment would be assessed and collected in the same manner as a deficiency (except for eases described in section 1312(3) (B)), the adjustment shall not be made with respect to a related taxpayer unless he stands in such relationship to the taxpayer at the time the latter first maintains the inconsistent position in a return, claim for refund, or petition (or amended petition) to the Tax Court of the United States for the taxable year with respect to which the determination is made, or if such position is not so maintained, then at the time of the determination.

(26 U.S.C. 1958 ed.,§ 1311)

*102 “§ 1312. Circumstances of adjustment “The circumstances under which the adjustment provided in section 1311 is authorized are as follows:

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“(3) Double exclusion of an item of gross income.—

“(A) Items included in income. — The determination requires the exclusion from gross income of an item included in a return filed by the taxpayer or with respect to which tax was paid and which was erroneously excluded or omitted from the gross income of the taxpayer for another taxable year, or from the gross income of a related taxpayer; or

“(B) Items not included in income.— The determination requires the exclusion from gross income of an item not included in a return filed by the taxpayer and with respect to which the tax was not paid but which is includible in the gross income of the taxpayer for another taxable year or in the gross income of a related taxpayer.

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(26 U.S.C. 1958 ed., § 1312)

“§ 1313. Definitions

“(a) Determination. — For purposes of this part, the term ‘determination’ means—

“(1) a decision by the Tax Court or a judgment, decree, or other order by any court of competent jurisdiction, which has become final;

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“(c) Related taxpayer. — For purposes of this part, the term ‘related taxpayer’ means a taxpayer who, with the taxpayer with respect to whom a determination is made, stood, in the taxable year with respect to which the erroneous inclusion, exclusion, omission, allowance, or disallowance was made, in one of the following relationships:

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(6) partner, or

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(26 U.S.C. 1958 ed., § 1313)

“§ 1314. Amount and method of adjustment

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“(b) Method of adjustment. — The adjustment authorized in section 1311(a) shall be made by assessing and collecting, or refunding or crediting, the amount thereof in the same manner as if it were a deficiency determined by the Secretary or his delegate with respect to the taxpayer as to whom the error was made or an overpayment claimed by such taxpayer, as the case may be, for the taxable year or years with respect to which an amount is ascertained under subsection (a), and as if on the date of the determination one year remained before the expiration of the periods of limitation upon assessment or filing claim for refund for such taxable year or years.

* * *

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(26 U.S.C. 1958 ed., § 1314.)”