DocketNumber： Docket No. 19888.
Citation Numbers： 15 B.T.A. 1388, 1929 BTA LEXIS 2666
Judges： Statute, Himself, Love, Extend, That, Acts, Smith, Phillips, Valid, Aiujndell, Has, Waiver
Filed Date： 4/12/1929
Status： Precedential
Modified Date： 1/12/2023
*2666 A Texas corporation was dissolved June 13, 1919. The statutes of that State continued the existence of the corporation for a period of three years and gave the trustees of the corporation authority for that period to settle the affairs of the corporation, and also provided that the corporate existence might be longer continued by the appointment of a receiver. No receiver was appointed. More than three years after the dissolution of the corporation, the former president of the corporation, who had also been one of its trustees, signed a consent on behalf of the dissolved corporation purporting to extend the period of limitation for assessment and collection of any tax found to be due by the corporation.
*1388 The Commissioner has proposed an assessment against petitioner in the amount of $5,177.29, covering his liability as transferee of the assets of the Burkburnett Refining Co., Wichita Falls, Tex., for unpaid income and profits taxes claimed to be owing by that corporation for the fiscal year ended March 31, 1919, in an equal amount.
The petitioner assigns four errors on the part of the respondent, as follows:
(a) In determining that he had the constitutional right to establish, adjudicate, or enforce any liability against the transferee of the assets of a corporation for taxes claimed to be due by said corporation.
(b) In holding and determining that the period within which income and excess-profits taxes for the fiscal year ended March 31, 1919, could be assessed against the Burkburnett Refining Co. had not expired at*2668 the time the assessment herein involved was made.
(c) In holding and determining that the alleged waiver executed in the name of the Burkburnett Refining Co. on or about June 23, 1924, was effective to extend the period within which an assessment of additional taxes could be made against such taxpayer.
*1389 (d) In the calculation of the net income of the Burkburnett Refining Co. for the fiscal year ended March 31, 1919, in that he disallowed as a deductible loss the sum of $43,500, representing the cost of refinery equipment bought and paid for by said company, which was never delivered and the delivery of which could not be enforced.
For the purposes of this opinion it will be necessary to consider only the admitted facts with reference to petitioner's assignment of errors in (b) and (c) above.
FINDINGS OF FACT.
The petitioner is a resident of Wichita Falls, Tex. The liability in controversy is the entire amount asserted against the petitioner as transferee of the assets of the Burkburnett Refining Co., hereinafter referred to as the Refining Company, for unpaid income and profits taxes in the sum of $5,177.29, assessed against that corporation for the fiscal*2669 year ended March 31, 1919.
The refining Company was a Texas corporation organized in 1917, with an authorized capital stock of $300,000. Petitioner was a stockholder in the Refining Company, a director of it, and from the latter part of 1918, or the early part of 1919, until its dissolution, he was its president.
June 13, 1921, all the stockholders of the Refining Company filed with the Secretary of State, of Texas, all in due compliance with law, an agreement and consent in writing that said corporation be dissolved, and the Secretary of State on the same date issued a certificate of dissolution as follows:
I, S. L. Staples, Secretary of State, of the State of Texas, Do HEREBY CERTIFY, that J. C. Hunt, President, G. D. Rigsby, Secretary and G. D. Rigsby, Treasurer of Burkburnett Refining Company, a corporation duly and legally incorporated under the laws of the State of Texas, with its principal office at Wichita Falls, Wichita County, Texas, have this day filed in this Department an agreement and consent in writing of all the stockholders of said Corporation, consenting and agreeing that said Corporation be dissolved, together with a list of officers and directors of said*2670 Corporation, with the postoffice address and place of residence of each, said President, Secretary and Treasurer certifying that said consent to dissolution was the true and correct action of the stockholders.
I further certify that by reason of said action of the stockholders of said Burkburnett Refining Company, said Corporation is dissolved.
On June 23, 1924, three years and ten days thereafter, the following income and profits-tax waiver for the year ended March 31, 1919, was signed on the part of the taxpayer by "J. C. Hunt, President," and attested by "Parker Simison, Asst. Secretary." Simison was not and had never been a director of the corporation.
*1390 BURKBURNETT REFINING CO.
Waiver for year ended March 31, 1919
WICHITA FALLS, TEXAS,
INCOME AND PROFITS TAX WAIVER
In pursuance of the provisions of subdivision (d) of Section 250 of the Revenue Act of 1921, Burkburnett Refining Company of Burkburnett, Texas, and the Commissioner of Internal Revenue, hereby consent to a determination, assessment, and collection of the amount of income, excess-profits, or war-profits taxes due under any return made by or on behalf of the said Burkburnett*2671 Refining Company for the year ended March 31, 1919, under the Revenue Act of 1921, or under prior income, excess-profits, or war-profits tax Acts, or under Section 38 of the Act entitled "An Act to provide revenue, equalize duties, and encourage the industries of the United States and for other purposes," approved August 5, 1909. This waiver is in effect from the date it is signed by the taxpayer and will remain in effect for a period of one year after the expiration of the staturory period of limitation, or the statutory period of limitation as extended by any waivers already on file with the Bureau, within which assessments of taxes may be made for the year or years mentioned.
BURKBURNETT REFINING COMPANY,
(CORPORATE SEAL.)
By J. C. HUNT,
D. H. BLAIR,
Attest:
PARKER SIMISON,
If this waiver is executed on behalf of a corporation, it must be signed by such officer or officers of the corporation as are empowered under the laws of the State in which the corporation is located to sign for the corporation, in addition to which, the seal, if any, of the corporation must be affixed.
No seal was affixed*2672 to the waiver.
Thereafter, on March 11, 1925, a somewhat similar waiver extending the time limit for assessment to December 31, 1925, as appears below, was signed for the year ended March 31, 1919, by the same individuals acting in the same official capacities.
MARCH 11, 1925.
INCOME AND PROFITS TAX WAIVER
(For taxable years ended prior to March 1, 1921)
In pursuance of the provisions of existing Internal Revenue Laws Burkburnett Refining Company, a taxpayer of Wichita Falls, Texas, and the Commissioner of Internal Revenue hereby waive the time prescribed by law for making any assessment of the amount of income, excess-profits, or war-profits taxes due under any return made by or on behalf of said taxpayer for the year(s) March 31, 1919 under existing revenue acts, or under prior revenue acts. This waiver of the time for making any assessment as aforesaid shall remain in effect until December 31, 1925, and shall then expire except that if a notice of a deficiency in tax is sent to said taxpayer by registered mail before said date *1391 and (1) no appeal is filed therefrom with the United States Board of Tax Appeals then said date shall be extended sixty days, or*2673 (2) if an appeal is filed with said Board then said date shall be extended by the number of days between the date of mailing of said notice of deficiency and the date of final decision by said Board.
BURKBURNETT REFINING COMPANY,
By J. C. HUNT,
D. H. BLAIR,
Company long since out of business & corporate seal lost.
Attest:
PARKER SIMISON,
If this waiver is executed on behalf of a corporation, it must be signed by such officer or officers of the corporation as are empowered under the laws of the State in which the corporation is located to sign for the corporation, in addition to which, the seal, if any, of the corporation must be affixed.
The Refining Company's income-tax return for the fiscal year ended March 31, 1919, was filed August 2, 1919. The assessment of the additional income and profits taxes alleged to be due from the corporation for that fiscal year was made on the June, 1925, list. On August 6, 1926, the Commissioner mailed petitioner a notice by registered mail of his determination that petitioner was liable under section 280 of the Revenue Act of 1926 for the tax of the corporation.
*2674 OPINION.
LOVE: We are of the opinion that the waiver executed on behalf of the Refining Company, a Texas corporation, by the former president and attested by the former assistant secretary, which corporation was legally dissolved more than three years before the waiver was signed, is invalid and ineffectual to suspend the running of the statute of limitation, and that the proposed assessment against the petitioner as transferee is barred.
Chapter 8, Title 32, of the Revised Civil Statutes of Texas, 1925, provides:
ART. 1388. Liquidation by officers. Upon the dissolution of a corporation, unless a receiver is appointed by some court of competent jurisdiction, the president, and directors or managers of the affairs of the corporation at the time of its dissolution shall be trustees of the creditors and stockholders of such corporation, with power to settle the affairs, collect the outstanding debts, and divide the moneys and other property among the stockholders after paying the debts due and owing by such corporation at the time of its dissolution, as far as such money and property will enable them after paying all just and reasonable expenses; and for this purpose they*2675 may in the name of such corporation, sell, convey and transfer all real and personal property belonging to such company, collect all debts, compromise controversies, maintain or defend judicial proceedings, and exercise full power and authority of said company over such assets and property. Said trustees shall be severally responsible to *1392 the creditors and stockholders of such corporation to the extent of its property and effects that shall have come into their hands. (Vernon's Revised Civil Statutes, 1925, Vol. 3, pp. 244, 245.)
ART. 1389. Extension of existence. The existence of every corporation may be continued for three years after its dissolution from whatever cause, for the purpose of enabling those charged with the duty, to settle up its affairs. In case a receiver is appointed by a court for this purpose, the existence of such corporation may be continued by the court so long as in its discretion it is necessary to suitably settle the affairs of such corporation. (
We give little weight to the contention of the petitioner that the waiver is void because executed only by Hunt and not by all seven of those who had been directors and, *2676 subsequently, under the law, trustees of the corporation. In signing the waiver, Hunt did not hold himself out as one of the trustees for the corporation. He signed as "President" and, by presumption, as one of its directors. In , the court said:
When the president and secretary of the board of directors act, and it is not shown that the other directors protested or objected, the presumption may be indulged that they acquiesced.
See also .
No such protest or objection is shown in the case under consideration. In fact, it appears that so far as they may have been consulted at all, they concurred, or at least failed to object. The petitioner upon the witness stand was asked in direct examination:
A. I do not know whether I did or not. If I had I would not have consulted over one or two if I consulted any.
In view of this, the presumption of acquiescence, if such acquiescence were necessary, is strong, and were there no other considerations we might be inclined to support the*2677 contention of the respondent upon this issue, even though the petitioner executed the waiver upon his own initiative and without consulting any of his former fellow directors. But those other considerations are, in our opinion, of much greater weight.
The Texas statutes provide that the existence of any corporation may be continued for three years after its dissolution from whatever cause, for the purpose of enabling those charged with the duty to settle up its affairs, but there is no statutory provision for the continued existence of the corporation for any purpose whatever beyond the three-year period unless a receiver be appointed by the court for the purpose of such settlement. In every other case and under all other circumstances, it appears, we think, that the corporation is dead, at least so far as its power and therefore necessarily the power of its trustees to originate new acts or enter into new *1393 agreements of any kind is concerned. It has been so held by the courts of Texas and of other States as well, and we have found nothing to the contrary where the circumstances were as they are here.
Counsel for the respondent in this case invokes the doctrine*2678 of estoppel and argues that since this very footnote provides that the waiver "must be signed by such officer or officers of the corporation as are empowered under the laws of the state in which the corporation is located to sign for the corporation," the Commissioner was warranted in assuming that the waiver of June 23, 1924, was a valid document. In view of the obvious defect in the instrument, we can not concur that he was so warranted.
The waiver of March 11, 1925, extending the time for assessment until December 31, 1925, not only lacks the corporate seal as required, but bears the notation: "Company long since out of business & corporate seal lost." A company may be "long since out of business" and still maintain its corporate existence, but we think that in view of the declaration that it had been long out of business and that this was the second waiver received without a seal, the Commissioner, if he were not before, was then certainly on notice of an irregularity of some kind that required immediate investigation. Such a timely investigation would inevitably have disclosed the situation, which on this point, at least, might have been saved.
In any event, there is nothing*2679 to indicate that the Commissioner did not know that the corporation had been legally dissolved or that he was in any wise misled by any representations of petitioner.
In , the court said:
It is well settled that at common law and in the federal jurisdiction a corporation which has been dissolved is as if it did not exist, and the result of the dissolution can not be distinguished from the death of a natural person in its effect (citing authorities). It follows therefore that, as the death of the natural person abates all pending litigation to which such a person is a party, dissolution of a corporation at common law, abates all litigation in which the corporation is appearing either as plaintiff or defendant. To allow actions to continue would be to continue the existence of the corporation
*2680 At the time the consent here involved was executed, the life of the Refining Company had completely expired, and under the three-year limitation statute of the State there remained in the trustees no authority to execute a valid consent. Cf. , in which we held that a proceeding for and on behalf of a wholly dissolved corporation could not be prosecuted before this Board.
*1394 We are of the opinion that the waiver signed by Hunt was invalid and therefore did not suspend the running of the statute of limitations for assessment and collection of the tax of the corporation. The statute of limitations expired in August, 1924; the tax was not assessed until June, 1925. The notice of the Commissioner's determination of petitioner's liability for the deficiency in the tax of the corporation was mailed to him August 6, 1926, more than one year after the expiration of the time for assessment against the taxpayer corporation.
In view of this decision it is not necessary to pass upon the remaining issues raised by the petitioner.
Reviewed by the Board.
PHILLIPS, SMITH, and ARUNDELL dissent on the ground that the petitioner has, by his acts, estopped himself to deny that the waiver was valid to extend the statute.