Scioto Valley Supply Co. v. Commissioner , 17 B.T.A. 173 ( 1929 )

SCIOTO VALLEY SUPPLY CO., PETITIONER, v. COMMISSIONER OF INTERNAL REVENUE, RESPONDENT.

Scioto Valley Supply Co. v. Commissioner

Docket No. 27602.

United States Board of Tax Appeals

17 B.T.A. 173; 1929 BTA LEXIS 2342;

August 28, 1929, Promulgated

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The collection of the deficiency herein is barred by the statute of limitations. Russel v.United States,49 Sup.Ct. 121.

Evert L. Bono, Esq., for the petitioner.

Brooks Fullerton, Esq., for the respondent.

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MORRIS

This proceeding is for the redetermination of a deficiency in income and profits taxes for 1918 of $61,101.76, and the sole question for determination is whether, as the petitioner alleges and contends, the statute of limitations has run against the collection of said deficiency.

FINDINGS OF FACT.

The petitioner, a corporation, organized and incorporated under the laws of the State of Ohio, filed its corporation income and profits-tax return for the calendar year 1918 on June 14, 1919, showing total taxes for that year of $77,744.55, all of which sum was paid in four installments during 1919.

In December, 1922, the respondent found and assessed against the petitioner a deficiency in tax in the amount of $96,294.77, and the petitioner thereupon filed a claim in abatement of said amount so assessed in January, 1923.

Under date of March 1, 1927, a deficiency notice was mailed to the petitioner, in which the respondent stated that the claim in abatement aforesaid had been allowed to the extent of $35,193.03 and rejected for $61,101.76, which is the amount of the deficiency here in controversy.

No consent in writing was ever entered into between the petitioner and the respondent agreeing or consenting to a longer period of limitations than five years from the date on which the return was filed for the collection of the deficiency herein.

OPINION.

MORRIS: The petitioner filed its return for 1918 on June 14, 1919, and the deficiency here in controversy was assessed against it in December, 1922. No consent in writing was ever entered into between the petitioner and the respondent agreeing to an extension of the period of limitations within which the collection of the deficiency might be made.

In view of the fact that the identical question involved in this proceeding has been decided adversely to the respondent in , which the respondent concedes, it is unnecessary for us to enter into an elaborate discussion of the issue raised.

In the respondent's brief it is conceded that the collection of the deficiency is barred by the statute of limitations, but he refers to certain credits, resulting from overpayments in other years, applied against the deficiency herein after the collection of the said deficiency was barred by the statute, and states that the question in issue is whether those credits should be considered as overpayments and the amount thereof refunded to the petitioner. There was some discussion at the hearing of this proceeding on the subject of those credits, but there is nowhere in the record a motion to amend the pleadings which would place this question in issue. The only issue as we view the pleadings is whether the statute of limitations has run upon the collection of the deficiency and that question we have already decided.

Judgment will be entered for the petitioner.