McFetridge v. Commissioner , 9 B.T.A. 759 ( 1927 )

GEORGIANA MCFETRIDGE, PETITIONER, v. COMMISSIONER OF INTERNAL REVENUE, RESPONDENT.

McFetridge v. Commissioner

Docket No. 11210.

United States Board of Tax Appeals

9 B.T.A. 759; 1927 BTA LEXIS 2507;

December 22, 1927, Promulgated

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1. The Commissioner's action in disallowing the application of the 25 per cent reduction provided by Title XII, Revenue Act of 1924, to that portion of petitioner's income returned for 1924 which came from the proportionate 1923 earnings of her partnership, which had a fiscal year, is approved. Charles Colip,5 B.T.A. 123">5 B.T.A. 123, followed.

2. The status of additional notices of deficiency as to the taxable year in question, other than the notice of deficiency appealed from, discussed.

D. D. Shepard, Esq., for the respondent.

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LOVE

This proceeding was brought for the redetermination of a deficiency in income tax for the calendar year 1924, in the amount of $297.52, the notice of which deficiency was mailed to the petitioner on November 25, 1925. The deficiency proposed arose by reason of the Commissioner's action in disallowing the application of 25 per cent reduction to that portion of petitioner's income returned for 1924, which came from the proportionate 1923 earnings of her partnership, which had a fiscal year, and in respect of such action the petitioner alleged error.

On February 11, 1926, the Commissioner mailed to the petitioner a second notice of deficiency proposing for the year 1924 a deficiency of $465.47 and on December 23, 1926, a third notice of deficiency was mailed to the petitioner proposing for the year 1924 a deficiency of $686.35. The circumstances surrounding and the bases of the second and third deficiency notices will sufficiently appear hereinafter. The facts are stipulated and no one appeared on behalf of petitioner at the hearing.

FINDINGS OF FACT.

The petitioner is an individual residing at Baraboo, Wis. She was a member of a partnership which kept its books and made its partnership return on the basis of a fiscal year beginning February 1, 1923, and ending January 31, 1924.

The petitioner filed an individual income-tax return for the calendar year 1924, including therein the amount of $15,759.79 as her distributive share of the partnership income for its fiscal year. Of this amount $14,446.47 was reported as her portion of the partnership income attributable to the year 1923.

Upon audit of her return for the calendar year 1924, the Commissioner applied rates imposed by the Revenue Act of 1921 to $14,446.47 without making an allowance of 25 per cent under section 1200 of the Revenue Act of 1924. This action by the Commissioner resulted in a deficiency in tax, of which he notified the petitioner on November 25, 1925, stating the amount to be $297.52. Thereafter, an appeal was taken to the United States Board of Tax Appeals within the time required by law, the petition having been filed on January 22, 1926.

On February 11, 1926, the Commissioner, by the usual notice of deficiency, advised the petitioner that for the year 1924 there was a deficiency of $465.47. This notice of deficiency contained the following statement:

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STATEMENT

In re: Miss Georgiana McFetridge 515 Fourth Avenue Baraboo, Wisconsin

Year 1924

Deficiency in Tax. $465.47

Reference is made to your letter dated September 12, 1925, in which you take exception to the determination of your income-tax liability as outlined in Collector's letter of August 24, 1925.

An error was made in the computation of surtax on $14,760.34 net income reported on line 30, the correct amount being $338.36 instead of $179.41.

For the purpose of computation of surtax the amount of $14,760.34 on line 30 is superimposed on $3,545.59 total net income taxable at 1924 rates and is subject to surtax at 1923 rates in the brackets falling between $3,545.50 and your total income taxable at 1923 rates, or $18,305.93.

The reduction of 25% in 1923 income taxes provided by Section 1200 is not applicable to that portion of income taxable at 1923 rates reported in a return for the calendar year 1924.

Thereafter, under date of May 1, 1926, the parties hereto filed the following stipulation:

The above-named taxpayer has heretofore filed an appeal with the United States Board of Tax Appeals, Docket No. 11210, in which she assigns as error the action of the Commissioner of Internal Revenue in disallowing as a credit an item claimed by said taxpayer upon her individual income tax return for the year 1924 as representing 25% of the total tax upon income reported by her as taxable at 1923 rates.

It is hereby stipulated and agreed that a deficiency letter was mailed to the taxpayer on November 25, 1925, and that said deficiency letter stated a deficiency in tax for the year 1924 in the amount of $297.52. It is further stipulated and agreed that a deficiency letter was mailed to the taxpayer on February 11, 1926, and that said deficiency letter states a deficiency in tax for the year 1924 in the amount of $465.47.

It is hereby stipulated, agreed and understood that the aforementioned deficiency letter dated Febraury 11, 1926, corrected an error which was made in the determination of the deficiency tax, as shown by the deficiency letter dated November 25, 1925, in computing the surtax on $14,760.34, net income reported on Line 30 of the taxpayer's return for the calendar year 1924, the correct amount being $338.36 instead of $170.41.

It is further expressly stipulated, agreed and understood that the taxpayer agrees to and acquiesces in said determination, to-wit, that the correct computation of surtax on $14,760.34, taxable at 1923 rates reported on Line 30 as aforesaid, amounts to $338.36 and furthermore that the taxpayer has made and will make no issue of said determination.

Furthermore, it is stipulated and agreed that the only issue to be heard by this Board in connection with the above appeal is the question as to whether the taxpayer is entitled to a credit of 25% of the total tax upon income reported by her as taxable at 1923 rates which total tax has been determined to be in the amount of $1,357.02.

On December 23, 1926, the petitioner was advised by the Commissioner, by the usual notice of deficiency, that for the year 1924, there was a deficiency in tax amounting to $686.35. This increase of the deficiency for 1924 from $465.47 to $686.35 was due to an increase in partnership income of $1,339.50, based on a revenue agent's report, and the inclusion in income of $312.66, foreign interest.

The petitioner took no action with respect to the notice of deficiency dated December 23, 1926.

This proceeding was called for hearing on May 10, 1927. The petitioner did not appear nor did any representative appear for her. At the hearing, the Commissioner, by his attorney, moved to increase the deficiency appealed from, to wit, $297.52, to $686.35, the amount stated in his notice of December 23, 1926. In support of this motion, the deficiency notice of December 23, 1926, together with the revenue agent's report, upon which that notice was based, were introduced in evidence.

OPINION.

LOVE: The respondent in his notice of deficiency, dated November 25, 1925, proposed a deficiency in tax for the year 1924 in the amount of $297.52. The petitioner appealed from his action in determining that deficiency and alleged that the respondent erred in disallowing the application of 25 per cent reduction to that portion of her income returned for 1924 which came from the proportionate 1923 earnings of her partnership, which had a fiscal year. The entire deficiency resulted from such action by the respondent and consequently the issue presented is determinative thereof.

As is set forth in the findings of fact, the parties hereto by stipulation agreed that the respondent had erred in computing the surtax, as stated in his notice of November 25, 1925, and that the notice of February 11, 1926, was simply a correction of that error and that the correct computation of the deficiency appealed from was $465.47.

The issue presented as to whether the respondent erred in disallowing the application of 25 per cent reduction to that portion of petitioner's income returned for 1924 as came from the proportionate 1923 earnings of her partnership, which had a fiscal year, and upon which the deficiency of $465.47 is predicated, must be resolved in favor of the respondent upon the authority of the Board's decision in , as the identical issue was presented therein. Having resolved the sole issue presented by the pleadings and upon which the deficiency of $465.47 is predicated in favor of the respondent, it is necessary for us to consider the respondent's motion to increase that deficiency to $686.35 as disclosed by his notice of December 23, 1926.

The increased deficiency as shown in the notice of December 23, 1926, arises by reason of the findings of a revenue agent that the petitioner's partnership income should be increased by the amount of $1,339.50, and that the amount of $312.66 foreign interest should be included in income, which results in a net increase of the deficiency to the extent of $220.88. The petitioner did not appeal from the respondent's determination as evidenced by his notice of December 23, 1926. That notice, therefore, does not constitute the basis of this appeal, and it being before us only in support of a motion to increase the deficiency, does not carry with it a presumption of correctness.

By his motion to increase the deficiency appealed from the respondent introduces into this proceeding new issues, to wit: Error with respect to partnership income and foreign interest, and in respect of such issues the burden of proof is on him.

As before stated, in support of the motion to increase the deficiency appealed from, the respondent offered in evidence the deficiency notice of December 23, 1926, together with a revenue agent's report showing certain findings in regard to petitioner's partnership income and foreign interest. These documents were permitted to go into the record, subject to a ruling upon a consideration of the case as to their competency as evidence. In our opinion, these documents are not competent proof of the facts asserted by the respondent and, consequently, we decline to increase the deficiency from $465.47 to $686.35.

Reviewed by the Board.

The deficiency for 1924 is $465.47. Judgment will be entered accordingly.