Wallach & Mayer, Inc. v. Commissioner , 1 B.T.A. 316 ( 1925 )

Appeal of WALLACH & MAYER, INC.

Wallach & Mayer, Inc. v. Commissioner

Docket No. 683.

United States Board of Tax Appeals

1 B.T.A. 316; 1925 BTA LEXIS 2972;

January 13, 1925, decided Submitted December 17, 1924.

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Oscar Winkler, C.P.A., for the taxpayer.

W. D. Nance, Esq. (Nelson T. Hartson, Solicitor of Internal Revenue) for the Commissioner.

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Before IVINS, KORNER, and MARQUETTE.

This appeal came on for hearing on December 17, 1924, when counsel for the Commissioner moved for leave to withdraw the answer and substitute a motion to dismiss the petition upon the ground that the appeal is premature in that the Commissioner has not yet made a determination from which an appeal can be taken to this Board. The Commissioner's determination was in a form known in the Commissioner's office as N.P. 3, and read as follows:

In accordance with the provisions of section 274(d) of the Revenue Act of 1924, there has been assessed against you an income and excess profits tax amounting to $1,324.11 for the taxable years 1920, 1921 and 1922, details of which are set forth in the attached statements.

Under the provisions of section 279(a) of the act, you have the right to file with the collector of internal revenue, within 10 days after notice and demand for payment, a claim for abatement of this tax or any part thereof. The claim should have attached to it all evidence and data upon which you rely in support thereof, and should be accompanied by a bond not exceeding double the amount of the claim, with such sureties as the collector deems necessary. When the claim is received by the collector it will be transmitted to the Commissioner of Internal Revenue, Washington, D.C., who will notify you of the action taken.

The division sitting granted the Commissioner's motion and dismissed the appeal. The action of the division was reviewed by the Board, which makes the following

DECISION.

The action of the division in dismissing the appeal herein is reversed on the authority of the , and is hereby ordered restored to the calendar for hearing.