Day v. Commissioner ( 1928 )


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  • HENRY M. DAY, PETITIONER, v. COMMISSIONER OF INTERNAL REVENUE, RESPONDENT.
    Day v. Commissioner
    Docket No. 30198.
    United States Board of Tax Appeals
    12 B.T.A. 161; 1928 BTA LEXIS 3586;
    May 28, 1928, Promulgated

    *3586 1. Notice of deficiency held to have been improperly addressed.

    2. Under the circumstances in this proceeding held that the Board has not jurisdiction.

    Henry Brach, C.P.A., for the petitioner.
    J. Arthur Adams, Esq., for the respondent.

    SIEFKIN

    *161 This is a proceeding for the redetermination of a deficiency in income and profits taxes for the year 1919 in the amount of $35,691.42, asserted against the petitioner under the provisions of section 280 of the Revenue Act of 1926 as a transferee of the assets of Henry M. Day & Co., Inc. Two questions are presented for decision by motions to dismiss: (1) Whether this Board has jurisdiction of the proceeding, and (2) whether the assessment of any deficiency is barred.

    FINDINGS OF FACT.

    The petitioner was a stockholder of Henry M. Day & Co., Inc. The address of the corporation was 70 East 77th Street, New York. An income and profits-tax return for the corporation was duly filed on March 12, 1920, and an amended return was filed December 15, 1920. A deficiency of $35,691.42 was assessed February 7, 1924, *162 against the corporation, and the same amount was assessed against*3587 the petitioner on June 11, 1927. A registered notice of deficiency was addressed and mailed on February 25, 1927, to the petitioner at 70 East 77th Street, New York City, by the respondent. The petitioner had not been at that address for some years. His correct address was 165 Hudson Street, New York City. The registered notice of deficiency was not received by the petitioner until July 12, 1927, when it was delivered to his representative by an individual in the 57th Street office of the collector of internal revenue in New York City. The petition for redetermination of the deficiency asserted was filed by the petitioner August 6, 1927.

    Between April 6, 1925, and February 24, 1927, the petitioner himself, or by his representatives, filed with the Commissioner of Internal Revenue at Washington, or with the collector at New York, various documents, and also addressed letters to the Commissioner at Washington. With the exceptions noted below, all such documents or communications showed the petitioner's mail address to be 165 Hudson Street, New York City. The exceptions were as follows:

    1. A letter from the petitioner's counsel to the Commissioner dated March 29, 1926, and*3588 containing the following:

    Your letters of March 13th addressed to Mr. Henry M. Day, 70 East 77th Street, New York, N.Y. and Mr. Robert M. Ellis, Hotel George Washington, West 72nd Street, New York, N.Y. have been referred to us.

    The certificate from Henry M. Day & Co. accepting the findings of the Bureau denying it personal service classification has been prepared and will be forwarded within the next few days. Likewise the waiver on form 872B will be signed by the taxpayer and forwarded to you.

    2. An "Income and profits tax waiver for a stockholder of a personal service corporation," bearing no date but stamped as having been received in the central mail room, Internal Revenue, on April 9, 1926, and containing the address of the petitioner as "70 West 77th Street, New York, N.Y."

    3. A "Tax Collection Waiver" undated, as follows:

    It is hereby agreed by and between Henry M. Day of 70 East 77th St., New York City, party of the first part, and the Commissioner of Internal Revenue, party of the second part, that the amount of $880.91 representing an assessment of income tax for the year(s) 1919 made against the said party of the first part, appearing on the 318809-March*3589 1920 assessment list, page 134, line 4, for the 2nd district of New York, may be collected (together with such interest, penalties, or other additions as are provided by law) from said party of the first part by distraint or by a proceeding in court begun at any time prior to December 31, 1927.

    HENRY M. DAY,

    (Taxpayer)

    Commissioner of Internal Revenue.

    By

    Collector of Internal Revenue.

    *163 The other instruments and letters filed with the Commissioner during the same period gave the petitioner's address as "care of Bennett Day & Co., 165 Hudson Street" and included a letter notifying the Commissioner that a letter addressed to 70 East 77th Street had been delayed in delivery. After that letter the Bureau of Internal Revenue addressed various communications to the petitioner at 165 Hudson Street. On February 24, 1927, the following telegram was received by the Bureau of Internal Revenue at Washington:

    Your file ITPAPYA please advise why certificate of over assessment has not been issued in accordance with your letter May twenty fifth nineteen hundred twenty six.

    OPINION.

    SIEFKIN: The facts which we have found above seem to us to acquaint the Commissioner*3590 of Internal Revenue with the fact that the address of the petitioner was not 70 East 77th Street, New York City, but was instead 165 Hudson Street in the same city, and to make a notice of deficiency addressed to the wrong address inoperative either to stop the running of the statute of limitations or to start the time within which a petition must be filed with this Board. See ; ; . Cf. .

    The next question is whether there has yet been such a notice of deficiency as will give us jurisdiction. The petition in this proceeding was filed within 60 days after the letter dated February 25, 1927, was delivered by hand to the petitioner's representative. In the Morgan case and the Utah Orpheum case, cited above, we held that the remailing date to a correct address started the period running within which a petition might be filed with the Board.

    There is a vital difference, however, between a mailing and a manual delivery. The one is definitely provided for by the statute and is the notice*3591 of deficiency which gives us jurisdiction. The other is not provided for by the statute and it may well be that Congress intended, inproviding for notice in a certain manner, i.e., by registered mail, to exclude all other forms as the condition precedent to our jurisdiction. This view has much weight because of the many difficulties of proof which would attend a determination of whether we had jurisdiction or not once it should be held that the method prescribed by statute is not the exclusive method. We, therefore, hold that we do not have jurisdiction of this proceeding since no proper notice of deficiency has been mailed to the petitioner by registered mail. The respondent's motion to dismiss is granted.

    Reviewed by the Board.

    LITTLETON, TRUSSELL, PHILLIPS, and MILLIKEN dissent.

Document Info

Docket Number: Docket No. 30198.

Judges: Lmibtok, Siefkin, Milliken, Teussell, Phillips

Filed Date: 5/28/1928

Precedential Status: Precedential

Modified Date: 10/19/2024