Commissioner v. Wolf Co. , 69 F.2d 1001 ( 1934 )

DAVIS, Circuit Judge.

The Wolf Company, the respondent, filed its income tax returns for the years 1921 and 1922 on March 15, 1922, and June 14, 1923, respectively. Before the Commissioner of Internal Revenue made the deficiency assessments for the years involved, the period of limitation of four years expired under the provisions of section 250 (d) of the Revenue Act of 1921 (42 Stat. 264), and section 277 (a) (2) of the Revenue Act of 1926, 26 USCA § 1057 (a) (2). The respondent executed waivers for the two years in question after the period had elapsed and filed them on November 12, .1926, and September 16, 1927. Within the period covered by the waivers the Commissioner made deficiency assessments against the respondent. The Board of Tax Appeals determined that the waivers were invalid and the assessments barred under section 1106 (a) of the Revenue Act of 1926 (26 USCA § 1249 note), which provided that the bar of the statute of limitations shall not only operate to bar the remedy but shall also extinguish the liability. But the Supreme Court in the case of Helvering v. Newport Company, 54 S. Ct. 480, 78 L. Ed. — - (decided March 5, 1934), rejected this contention and held that section 1106 (a) is not applicable to the question here involved since it is not a statute of limitations and that in any event the defense of the statute of limitations may be waived by the taxpayer, under the provisions of section 278 (e) of the Revenue Act of 1926 (26 USCA § 1060 note), after, as well as before, the expiration of the statutory period.

Upon the authority of that case the order of redetermination of the Board of Tax Appeals is set aside and the deficiency assessments of the Commissioner reinstated.