Edward Barron Estate Co. v. Commissioner

OPINION.

Sterniiagen:

On September 4, 1935, the Commissioner sent the petitioner, a California corporation, 'a notice of deficiency of $43,-279.67 in its 1932 income tax. At 5:10 p. m. of the ninetieth day thereafter, the last day of the period within which a petition could be filed with the Board, a telegram comprising the skeleton of a petition was addressed by the petitioner’s president in San Francisco to the Chairman of the Board in Washington, D. C. The address included the direction to “phone and deliver” to the Chairman at his home. This telegram was received in Washington too late for delivery at the Board’s headquarters during business hours. At 9 o’clock in the evening the telegram was telephoned by the telegraph company to the Chairman, and at his direction the telegram was delivered at the office of the Board the next day. At the Chairman’s direction, it was marked filed under the above docket number as on 'the ninetieth day.

The respondent moves to dismiss the proceeding on the ground that the petition was not filed within the time provided by statute and the rules. The petitioner urges that the communication of a telegraphic petition by telephone to a Member of the Board within the 90rday period and its delivery the next day is a statutory filing. While conceding, as it must, that a telephone communication of a petition is of itself not sufficient, and that a sending is not a filing it argues for an exception as to telegrams. But the telegraph employee is its agent, and his telephone communication of the petition has no more force than that of his principal, the petitioner, would have. ■ ' ’

The Board has always been liberally disposed toward the recognition of petitions irregularly filed, compare Continental Petroleum Co. v. United States, - Fed. Supp. - (April 14, 1936); F. O. Statler, 27 B. T. A. 342; Krueger Broughton Lumber Co., 18 B. T. A. 1270; Peruna Co., 11 B. T. A. 1180; but the petitioner’s contention here requires' a stretch beyond any conceivable notion of a filing. Beginning with Sam Satovsky, 1 B. T. A. 22, it has been''consistently held that a petition is-not filed until it is officially deposited with the Board. This means at its office. Lewis-Hall Iron Works v. Blair, 23 Fed. (2d) 972; certiorari denied, 277 U. S. 592. Anything else would be impossible .to administer. Here, for example, it is thought important that the Chairman testified that when he heard the' message “he fully understood the entire contents of the telegraphic petition, and received it in his official capacity as Chairman of the'Board.” Such a concept of filing must be-.rejected. ' By nothing less than a physical deposit of a: petition with a 'proper person in the office of the Board at Washington will it be recognized as properly filed under the rules.. See Poyner v. Commissioner, 81 Fed. (2d) 521.

Reviewed by the Board.'

The proceeding will he dismissed.