William H. Krome v. Commissioner , 16 T.C.M. 782 ( 1948 )

William H. Krome v. Commissioner.

William H. Krome v. Commissioner

Docket No. 14775.

United States Tax Court

1948 Tax Ct. Memo LEXIS 46; 16 T.C.M. (CCH) 782;

November 12, 1948

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The Tax Court's denial of the Commissioner's original motion was reported at 7 TCM 413, Dec. 16,495(M).

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LEECH

Memorandum and Order

LEECH, Judge: On May 25, 1948, the respondent moved to strike the amended petition filed herein and to dismiss the proceeding in so far as the deficiency for 1944 is concerned, which proceeding came on to be heard on June 16, 1948, at Washington, D.C.

On July 8, 1948 [, a memorandum and order was duly entered herein denying that motion.

On October 8, 1948, the respondent moved this Court to vacate its memorandum and order entered herein on July 8, 1948 [, and to grant his motion to strike the amended petition and to dismiss this proceeding in so far as it related to the taxable year 1944.

On October 13, 1948, notice of the filing of said motion, together with a copy thereof, was duly mailed to David E. Scoll, Esq., 50 Broadway, New York 4, New York, attorney for petitioner, with notice that such motion had been placed on the Calendar for hearing at Washington, D.C., on November 10, 1948, at 9:30 a.m. At the call of such motion at the time aforesaid, the respondent appeared by counsel but no appearance was made by or on behalf of petitioner.

Upon further consideration of respondent's original motion to strike the amended petition and to dismiss the proceeding in so far as it relates to the year 1944, we are now convinced that the memorandum and order entered July 8, 1948 [, denying said motion, was based on an erroneous conception and application of the law as previously determined by this Court. ; .

Deficiencies determined for different years constitute separate causes of action. . The original petition filed herein did not allege any assignment of error with respect to the deficiency determined for the year 1944. By amended petition, filed after the expiration of the statutory period, petitioner assigned error with respect to the deficiency determined for that year. The rule is well established that a new cause of action barred by the statute can not be asserted in a present case by amendment. .

Therefore, it is hereby

ORDERED: That the motion of the respondent to vacate the memorandum and order entered herein on July 8, 1948 [, be and the same is hereby granted; and it is further

ORDERED: That the original motion of the respondent to strike the amended petition herein and to dismiss this proceeding in so far as it relates to the taxable year 1944 be and the same is hereby granted.