A. Garside & Sons v. Commissioner , 18 B.T.A. 915 ( 1930 )

A. GARSIDE & SONS, INC., PETITIONER, v. COMMISSIONER OF INTERNAL REVENUE, RESPONDENT.

A. Garside & Sons v. Commissioner

Docket No. 19284.

United States Board of Tax Appeals

18 B.T.A. 915; 1930 BTA LEXIS 2571;

January 24, 1930, Promulgated

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1. Russel Wheel & Foundry Co.,3 B.T.A. 1168">3 B.T.A. 1168.

2. Plea of the statute of limitations disallowed.

Donald Horne, Esq., for the petitioner.

W. Frank Gibbs, Esq., for the respondent.

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PHILLIPS

Respondent has determined a deficiency in income and profits taxes for the calendar year 1921 in the amount of $433.30. The errors alleged in the petition are (1) that respondent denied petitioner's application for assessment under sections 327 and 328 of the Revenue Act of 1921; (2) that the time within which the alleged deficiency may be assessed has expired; (3) that respondent reduced petitioner's invested capital by the amount of its income and profits taxes for prior years.

FINDINGS OF FACT.

Petitioner is a corporation organized under the laws of New York with its principal office on Webster Avenue, Long Island City, N.Y.

On March 15, 1922, petitioner filed with the collector of internal revenue for the first district of New York an income-tax return form for the year 1921 containing the name and address of petitioner, the statement that it was engaged in the manufacture of ladies' shoes, and an estimate of its tax for 1921. Written across said form were the words "tentative return." It contained no information respecting the income, deductions, net income or invested capital of petitioner. On June 15, 1922, petitioner filed with the same officer its complete and final return for the same year. Under date of January 26, 1926, petitioner executed an instrument in writing, which was thereafter executed by respondent, which reads:

IT:E:SM.

HR:D:28522-8.

JANUARY 26, 1926.

In pursuance of the provisions of existing Internal Revenue Laws A. Garside and Sons, Incorporated, a taxpayer of Long Island City, New York, and the Commissioner of Internal Revenue hereby waive the time prescribed by law for making any assessment of the amount of income, excess-profits, or war-profits taxes due under any return made by or on behalf of said taxpayer for the year 1921, under existing revenue acts, or under prior revenue acts.

This waiver of the time for making any assessment as aforesaid shall remain in effect until December 31, 1926, and shall then expire except that if a notice of a deficiency in tax is sent to said taxpayer by registered mail before said date and (1) no appeal is filed therefrom with the United States Board of Tax Appeals then said date shall be extended by the number of days between the date of mailing of said notice of deficiency and the date of final decision of said Board.

A. GARSIDE & SONS

By (Signed) ARTHA GARSIDE, Treas.

Taxpayer.

By (Signed) D. H. BLAIR, Commissioner.

On June 15, 1926, respondent mailed the petitioner the deficiency letter on which this proceeding is based. On August 13, 1926, petitioner filed its petition with the Board.

In computing petitioner's invested capital for the year 1921 the respondent deducted from surplus the sum of $5,761.87, being petitioner's income and profits taxes for the year 1920, in the amount of $13,610.61, prorated according to the due dates of said taxes.

OPINION.

PHILLIPS: The first assignment of error was waived at the hearing.

There is no merit in the second error assigned. In January, 1926, and before the expiration of four years from the filing of petitioner's returns for the year 1921, either tentative or final, petitioner and respondent executed a waiver which extended the time in which the taxes might be assessed to December 31, 1926. Before the expiration of that period respondent mailed his deficiency letter, and within 60 days after the mailing of that letter petitioner filed its petition with the Board.

The third assignment of error must be decided adversely to petitioner on the authority of .

Decision will be entered for the respondent.