Anderson v. Commissioner , 11 T.C. 841 ( 1948 )

Stanley A. Anderson, Petitioner, v. Commissioner of Internal Revenue, Respondent

Anderson v. Commissioner

Docket No. 16492

United States Tax Court

11 T.C. 841; 1948 U.S. Tax Ct. LEXIS 30;

November 23, 1948, Promulgated

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Proceeding is dismissed for lack of jurisdiction.

All of petitioner's tax liability asserted in a letter purporting to be a notice of deficiency having been paid before the mailing thereof, held that the absence of any "deficiency" within the meaning of Internal Revenue Code, section 271 (a), deprives this Court of jurisdiction, requiring dismissal of the proceeding.

Hartford Allen, Esq., and John E. Mahoney, Esq., for the respondent.

Opper, Judge.

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OPPER

OPINION.

The petition purports to challenge a deficiency in income tax said to have been determined for the year 1943 in the amount of $ 1,097.08. Petitioner filed the return here involved with the collector for the fifth district of New Jersey.

Although neither petitioner nor anyone representing him appeared to prosecute the case, a hearing was had, and upon the evidence so taken respondent filed a motion to dismiss the proceeding for lack of jurisdiction.

The records of the office of the collector of internal revenue for the fifth district of New Jersey in respect to income and estimated tax of petitioner for the years 1942 and 1943 indicate the following:

1. Taxable	2. List	3. Acct. No. or	4. Amount
Period	and	Page and Line	Assessed
	Year
1942	1943	706442	488.90
1943	1943	3066262	2,603.28
ES		7007679	6,476.43
1943	1944	NA-770007
1943	1946	Mar-15	656.41
		519000 Int	76.56

	Paid, Abated, or Credited
1. Taxable				8. Adjustment of
Period	5. Date		7. Paid	Overassess.
	or Schedule	6. Amount	Ab. Cr.
	No.
1942	3/15/43	488.90	Pd.
1943	9/15/43	2,603.28	Pd.
ES	12/15/43	6,476.43	Pd.
1943	2/12/45	1,586.22	Refund
		71.01	Int.
		1,657.23
1943
	4/9/46	732.97	Pd.	1040-770007 Int. to
				Feb. 25, 1946.

No record of claims for refund.

Payment of $ 1100.00 received May 17, 1946 for 1942-43 additional tax, deposited in unclassified account January 500078-1947 L.

Petitioner made net payments of $ 9,738.80 on his 1943 income and victory tax liability of $ 9,735.74, as computed under the Current Tax Payment Act of 1943, all of which was paid prior to August 20, 1947. A letter bearing that date, purporting to determine a deficiency of $ 1,097.08 ^{Everett Knitting Works, 1 B. T. A. 5, 6:}

* * * The statute gives the taxpayer the right to appeal to the Board in cases where there is a statutory deficiency * * *

Evidently the amount previously collected must be subtracted from the amount of tax imposed by the statute in order to arrive at the statutory deficiency * * *

* * * Payment has already been made and there is nothing upon which the determination of the Board can effectively operate. The taxpayer has now, as he has heretofore had, a right of action in court to recover any amount erroneously collected.

Since, on the date of the mailing of the letter purporting to be a notice of deficiency, it appears that the tax there involved had already been paid, it must be held that the letter was not a valid notice of deficiency within the definition of the Internal Revenue Code. See Internal Revenue Code, section 271 (a). The inescapable prerequisite of our jurisdiction is consequently lacking. Cf. Will County Title Co., 38 B. T. A. 1396. Accordingly, notwithstanding the failure of petitioner to appear at the hearing and his default in prosecution of this appeal, this

Proceeding is dismissed for lack of jurisdiction.

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Footnotes

• 1. The assumed deficiency of $ 1,097.08 fails to take into account the $ 1,100 paid on May 17, 1946.↩