Edwin J. Schoettle Co. v. Commissioner , 13 B.T.A. 950 ( 1928 )

EDWIN J. SCHOETTLE CO., PETITIONER, v. COMMISSIONER OF INTERNAL REVENUE, RESPONDENT.

Edwin J. Schoettle Co. v. Commissioner

Docket No. 1941.

United States Board of Tax Appeals

13 B.T.A. 950; 1928 BTA LEXIS 3125;

October 12, 1928, Promulgated

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The bond filed by the petitioner in connection with a claim in abatement does not operate to extend the statutory period of limitations for the assessment and collection of taxes. C. B. Shaffer,12 B.T.A. 298">12 B.T.A. 298, and Gulf States Steel Co.,12 B.T.A. 1244">12 B.T.A. 1244, followed.

Victor H. Blanc, Esq., for the petitioner.

J. A. O'Callaghan, Esq., for the respondent.

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ARUNDELL

The respondent determined a deficiency of $19,991.60 in income and excess-profits taxes for the year 1917. Pursuant to an order entered herein on August 29, 1928, the issues involved in this proceeding were limited at the hearing to the statute of limitations question raised by the petitioner's amended petition.

FINDINGS OF FACT.

The petitioner is a Pennsylvania corporation with principal offices in Philadelphia, and is engaged in the business of manufacturing paper boxes and mailing tubes.

The petitioner's return for the calendar year 1917 was filed with the Collector of Internal Revenue, First District of Pennsylvania, on March 29, 1918. The return was executed and sworn to by Edwin J. Schoettle and John G. Bayne, as president and secretary, respectively, of the corporation. On January 10, 1916, Edwin J. Schoettle was elected treasurer of the petitioner, and in 1917 and 1918, in addition to being president of the corporation, was also its treasurer.

In March, 1923, the respondent made a jeopardy assessment against the petitioner in the amount of $33,786.97 for additional taxes for the year 1917.

On May 4, 1923, the petitioner, as principal, and the Central Trust & Savings Co., as surety, executed under their respective corporate seals, the following instrument:

KNOW ALL MEN BY THESE PRESENTS, That EDWIN J. SCHOETTLE COMPANY, as principal, and CENTRAL TRUST AND SAVINGS COMPANY, as surety, are held and firmly bound unto BLAKELY D. MCCAUGHN, Collector, First District, Pennsylvania, in the sum of Thirty-three thousand Seven hundred eighty six and 97/100 Dollars, lawful money of the United States, for the payment whereof we bind ourselves, our heirs, executors, administrators, successors and assigns, jointly and severally, firmly by these presents. Whereas the Collector of Internal Revenue for the 1st. District of Penna. has assessed against Edwin J. Schoettle Co. the sum of $33786.97 additional Income and Excess Profits Tax for 1917 and Whereas the said Edwin J. Schoettle Co. has filed a claim in abatement from such assessment.

NOW THEREFORE, the condition of the foregoing obligation is such that if the principal shall on notice and demand by the Collector duly pay any part of such tax found by the Commissioner to be due, with interest at the rate of six per cent per annum from the time such tax would have been due had no such claim been filed, and shall otherwise well and truly perform and observe all the provisions of law and the regulations, then this obligation is to be void, but otherwise to remain in full force and virtue.

This bond was filed with the collector by the petitioner in connection with a claim for the abatement of the taxes assessed.

The petitioner, on February 2, 1924, signed, and thereafter filed with the respondent, an instrument reading as follows:

In pursuance of the provisions of subdivision (d) of Section 250 of the Revenue Act of 1921, Edwin J. Schoettle Co., of Philadelphia, Pa., and the Commissioner of Internal Revenue, hereby consent to a determination, assessment, and collection of the amount of income, excess-profits, or war-profits taxes due under any return made by or on behalf of the said corporation for the years 1916, 1917, and 1918 under the Revenue Act of 1921, or under prior income, excess-profits, or war-profits tax Acts, or under Section 38 of the Act entitled "An Act to provide revenue, equalize duties, and encourage the industries of the United States, and for other purposes", approved August 5, 1909. This waiver is in effect from the date it is signed by the taxpayer and will remain in effect for a period of one year after the expiration of the statutory period of limitations, or the statutory period of limitation as extended by any waivers already on file with the Bureau, within which assessments of taxes may be made for the year or years mentioned.

On or about April 1, 1924, the petitioner requested the respondent in writing to refer its appeal involving 1917 tax liability to the Committee on Appeals and Review and to grant it an oral hearing before that committee on the questions in controversy.

The petitioner's claim in abatement was rejected by the respondent on December 15, 1924, in the amount of $19,991.60.

OPINION.

ARUNDELL: To the plea of the bar of the statute of limitation respondent has iknterposed the defense that the bond filed by petitioner with its claim in abatement is a consent in writing within the meaning of the taxing statute. This contention was ruled upon adversely by us in the case of , and . See also .

As a further defense respondent contends that petitioner's return does not meet the requirements of section 13(b) of the Revenue Act of 1916, which was in effect at the time the return was filed, in that the return was sworn to by petitioner's president and secretary, wherein the statute requires that it be sworn to by the president and treasurer of the company. The evidence discloses however, that Schoettle, who executed the return as president of the company, was during the taxable year and at the date the return was filed also petitioner's treasurer. In view of this fact it becomes unnecessary to pass upon the legal question raised by respondent.

Judgment will be entered for the petitioner.