Fremont Canning Co. v. Commissioner , 17 B.T.A. 484 ( 1929 )

FREMONT CANNING CO., PETITIONER, v. COMMISSIONER OF INTERNAL REVENUE, RESPONDENT.

Fremont Canning Co. v. Commissioner

Docket No. 4922.

United States Board of Tax Appeals

17 B.T.A. 484; 1929 BTA LEXIS 2292;

September 25, 1929, Promulgated

---

Petitioner has failed to establish that the Commissioner's deficiency notice was mailed more than five years after the return for the fiscal year ending February 28, 1919, was filed.

Henry C. Moeller, C.P.A., for the petitioner.

Philip M. Clark, Esq., for the respondent.

---

LITTLETON

The Commissioner determined a deficiency of $3,272.79 for the fiscal year ending February 28, 1919. Petitioner claims that its return for the taxable year was filed on July 15, 1919, and that assessment and collection of the deficiency are barred by the statute of limitations.

FINDINGS OF FACT.

Petitioner is a Nebraska corporation with office and principal place of business at Atlantic, Iowa. During the taxable year petitioner's president, J. W. Cuykendall, was also president of the Atlantic Canning Co. with principal office at Atlantic, Iowa.

On May 14, 1919, petitioner executed a tentative return and made request for an extension of time within which to file its return for the fiscal year ending February 28, 1919. This document bears the stamp "3rd Dist. - Iowa May 16 1919 - Collr. Int. Rev." The tentative return and request for an extension of time shows that on May 16, 1919, Louis Murphy, Collector of Internal Revenue, Dubuque, Iowa, granted an extension of time to June 15, 1919. The income and profits-tax return of the petitioner for the taxable year was prepared on Form 1120-A and was signed and sworn to by petitioner's president and its treasurer before a notary public on July 15, 1919. The statements and figures were typed upon this return. At the top of page 1 of the return in the space provided for the name of the taxpayer under the printed words "Print plainly corporation's name and principal place of business" appears in typewriting "Fremont Canning Company, Fremont, Nebraska." Upon the return filed in evidence in this proceeding the words "Fremont, Nebraska," are encircled with pencil and underneath them is written in pencil the words "Atlantic, Iowa." The record does not disclose by whom or when this change was made.

On July 15, 1919, the president and treasurer of petitioner who were also officers of the Atlantic Canning Co., signed and swore to an income and profits-tax return of the Atlantic Canning Co. The returns of the petitioner and the Atlantic Canning Co. were placed in separate envelopes and were mailed at the same time to the collector at Dubuque, Iowa. The return of the Atlantic Canning Co. bears the collector's stamp "Rec'd July 15 1919 - 3rd Dist. Iowa." The return of the petitioner bears the collector's stamp "Rec'd July 18, 1919 - 3rd Dist. Iowa."

The Commissioner assessed the deficiency on July 18, 1924. On April 25, 1925, he made a final determination and notified petitioner by registered mail as follows:

Reference is made to your claim for abatement for the year ended February 28, 1919, in the amount of $3,272.79 filed under date of July 29, 1924.

The additional tax of $3,272.79 was assessed July 18, 1924, and your return was filed under date of July 18, 1919. It appears therefore, that the additional tax was assessed within the five-year period provided in Section 277(a)(2) of the Revenue Act of 1918. Your claim will, therefore, be rejected in full.

In accordance with the provisions of Section 279(b) of the Revenue Act of 1924, you are allowed 60 days from the date of this letter within which to file an appeal to the Board of Tax Appeals contesting in whole or in part the correctness of this determination.

OPINION.

LITTLETON: The evidence upon which petitioner relies to show that the deficiency is barred is that the return of the petitioner and the return of the Atlantic Canning Co. were prepared and executed on the same day by the same persons, and were mailed at the same time in separate envelopes, and it is contended that inasmuch as the return of the Atlantic Canning Co. shows by the collector's stamp that it was received by him on July 15, 1919, that the petitioner's return must also have been received on July 15. The Commissioner has determined that the petitioner's return was filed on July 18, and the petitioner's evidence does not overcome that determination. The petitioner presented these returns in evidence and the facts disclosed by the evidence support the Commissioner's determination rather than show that it was erroneous.

The presumption that a letter placed in the mails will reach its destination in due course, ; ; ; , will not be indulged in when, as here, the evidence is to the contrary. , promulgated June 24, 1929. The presumption is that the Commissioner's determination is correct and his determination can not be overcome by another presumption which must itself be based upon still another presumption that the collector of internal revenue received the return three days before his record shows that he received it.

It is our opinion that the deficiency is not barred.

Reviewed by the Board.

Judgment will be entered for the respondent.