Taylor Bros. v. Commissioner ( 1927 )

TAYLOR BROTHERS, PETITIONER, v. COMMISSIONER OF INTERNAL REVENUE, RESPONDENT.

Taylor Bros. v. Commissioner

Docket No. 9021.

United States Board of Tax Appeals

9 B.T.A. 877; 1927 BTA LEXIS 2488;

December 27, 1927, Promulgated

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Clarence I. Howell, C.P.A., for the petitioner.

Brice Toole Esq., for the respondent.

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LANSDON

LANSDON: On September 16, 1925, the respondent mailed a letter to Taylor Brothers, a partnership, in business at McCool, Miss., which included, among other things, the following statements:

Reference is made to the letter signed by Mr. Clay Taylor and executed under date of August 19, 1925, in regard to the audit of your income tax returns for the years 1918 to 1921 inclusive, as outlined in office letter of June 25, 1925.

The results of the audit of the cases of the individual partners is being made the subject of separate communications addressed to them.

On the same date the respondent mailed deficiency notices, in the usual form, to Frank Taylor and Clay Taylor, both of whom are residents of the State of Mississippi. The notice to Frank Taylor asserted deficiencies in income taxes for the years 1918 to 1921, inclusive, in the total amount of $3,381.60, to which were added penalties for failure to make the income-tax returns required by law in any of the years involved in the total amount of $845.41. On the same day, a similar notice concerning the same years was mailed to Clay Taylor, also a resident of Mississippi, in which deficiencies and penalties, in the respective amounts of $3,309.60 and $827.41, were asserted.

On November 12, 1925, a paper, which purports to be the petition in the appeal of Taylor Brothers, a partnership, from the determination of the respondent, as above set forth, was filed with the Board of Tax Appeals. Among matters contained therein, such petition sets forth the following:

The above-named taxpayer hereby appeals from the determination of the Commissioner of Internal Revenue set forth in his deficiency letters IT:PA:1 VMW-104 and IT:PA:1-60D VMW-104, dated September 16, 1925, and as the basis of its appeal sets forth the following:

(1) The taxpayer is a partnership, consisting of two partners, namely, Frank Taylor and Clay Taylor, with its principal office at McCool, Mississippi.

The petition was verified by the following certificate, signed by the Taylors:

Frank Taylor and Clay Taylor, being duly sworn, say that they are the individuals composing the partnership of Taylor Brothers, the taxpayer named above, and as such do verify the foregoing petition; that they have read the said petition, and are familiar with the statements therein contained, and that the facts therein stated are true, except such facts as are stated to be upon information and belief, and that these facts they believe to be true.

The proceedings were called from the day calendar for hearing at Memphis, Tenn., on March 23, 1927. The respondent, through his attorney, there and then moved dismissal on the ground that such appeal was improperly taken by a partnership from deficiencies determined, as above stated, against individuals; that the respondent had asserted no deficiencies against any corporation, association, or partnership, designated and known as Taylor Brothers; and that a partnership is not a taxable entity under the Federal revenue acts applicable to the years involved. This motion was taken under advisement, and the parties were allowed 30 days in which to file their briefs upon the question of the jurisdiction of the Board to hear and determine the proceedings.

Upon an almost identical state of facts the Board, on its own motion in the first instance, and on the motion of the respondent in the second instance, has heretofore dismissed the appeals of Gerhardt & Co., Docket No. 1094, and Polk Brothers, Docket No. 6088. Compare, also, the , and .

The motion to dismiss is granted.

Reviewed by the Board.

Judgment dismissing the proceedings will be entered.

SMITH and TRUSSELL dissent.