Sutton v. Commissioner , 1 B.T.A. 101 ( 1924 )

Appeal of ELMER S. B. SUTTON, as executor of the estate of George Kemp.

Sutton v. Commissioner

Docket No. 306.

United States Board of Tax Appeals

1 B.T.A. 101; 1924 BTA LEXIS 244;

November 28, 1924, decided Submitted November 21, 1924.

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Petition dismissed as premature.

Mr. Elmer S. B. Sutton, for the taxpayer.

R. E. Copes, Esq. (Nelson T. Hartson, Solicitor of Internal Revenue) for the Commissioner.

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JAMES

Before JAMES, STERNHAGEN, TRAMMELL, and TRUSSELL.

FINDINGS OF FACT.

Under date of August 28, 1924, James J. O'Phelan, internal revenue agent, notified the taxpayer that the valuation of certain property in the estate of the decedent would be assessed for estate tax in the sum of $2,089.80. This notice constitutes the basis of the appeal. The Commissioner has interposed a plea which, in substance, is a demurrer to the petition on the ground that it does not state that the Commissioner has, since the passage of the Revenue Act of 1924, determined that a deficiency in estate tax is due from the taxpayer.

DECISION.

The petition does not state facts constituting a basis for appeal to this Board, and is dismissed.

OPINION.

JAMES: The taxpayer is premature in the filing of his petition. It appears that he has been notified merely of one of the steps which precede the determination of the Commissioner that a deficiency in tax exists. On the face of the petition it appears that no deficiency in tax has since the enactment of the Revenue Act of 1924 been determined by the Commissioner. Therefore, the taxpayer has not stated one of the facts essential to an appeal. Such a deficiency may never be determined. When a deficiency is determined, the taxpayer will receive the statutory 60-day notice of such determination, and upon that notice he may at that time petition this Board to hear and determine his tax liability.