McIlhenny v. Commissioner , 13 B.T.A. 288 ( 1928 )

OPINION.

Aetjndell :

The petitioners do not question in this proceeding the correctness of respondent’s determination as embodied in his notice of deficiency dated January 8, 1926. They do contend, however, that respondent, having once determined decedent’s tax liability, may not reopen and reconsider the case and that in the absence of fraud the determination once made must stand. Nor do they limit their contention to a case where the reopening was by a different person from the one making the prior determination.

The argument made rests upon the decision in Woodworth v. Kales, 26 Fed. (2d) 178. As we understand that case it involved only the question of the power of a Commissioner to revise findings of fact of a predecessor in office. In our case Commissioner Blair was in office when the letter of February 27, 1924, was written, which allowed the decedent the loss deduction claimed, and likewise when the deficiency was determined and the petitioners notified thereof by letter of January 8, 1926. The Kales decision is therefore not in point with the question here presented. But putting aside this distinction between the cases, the Kales decision does recognize that a mistake of law made by a Commissioner “ will often, or usually justify a revision of his conclusion.” The question upon which the Commissioner in the case before us reversed his opinion was a question of law and not a question of fact.

The question presented in this case has been decided adversely to the contentions of the petitioners in Dallas Brass & Copper Co., 3 B. T. A. 856; Masajiro Furuya, 4 B. T. A. 357; and James Couzens, 11 B. T. A. 1040.

Judgment will ~be entered for the respondent.