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There may be certain items which are quite similar to a net operating loss carryover or operating deficit and whose right to survive a reorganization should perhaps be subject to the conditions applicable to those items.

For example, suppose another excess profits tax similar to prior laws is enacted, providing for carryover of excess profits credits.

This carryover right has a number of things in common with a net operating loss carryover.

It is an averaging device intended to ease the tax burden of fluctuating income ; ;

it is a tax benefit which might be of substantial value to a corporation which expects to have a high excess profits tax.

Under the 1939 Code this item was permitted to survive a tax-free reorganization in the Stanton Brewery case, but only over the dissent of Judge Learned Hand, who wrote the majority opinion in the Sansome case, a leading case requiring carryover of earnings and profits in a non-taxable reorganization.