Hudson-Dugger Co. v. Commissioner

OPINION.

Littleton :

The purported notice of deficiency on account of which the Board is asked to take jurisdiction shows a total tax liability for the year in question of $8,464.65. Of the amount shown as due by the petitioner on the return as filed only $1,663.45 was ever assessed, which amount has not subsequently been changed by additional. assessments, abatements, credits, or refunds.

As a condition precedent to the Board taking jurisdiction of a proceeding, it is necessary that the Commissioner must have found a deficiency. Section 273 (1) of the Revenue Acts of 1924 and 1926 define a deficiency, so far as is pertinent here, as “ The amount by which the tax imposed by this title exceeds the amount shown as the tax by the taxpayer upon his return.”

It should be noted that the definition of deficiency in the statute does not set out as a requirement that the taxes shown due on the return must be assessed, but merely says “ the amount shown as the tax by the taxpayer upon his return.” When the petitioner filed a proper return admitting a tax liability of $8,500.69, this amount was shown as due on its return regardless of what the Commissioner may have done with respect to making assessment thereof. Appeal of Matteawan Manufacturing Co., 4 B. T. A. 953.

The Commissioner has determined that the total tax liability of the petitioner for the fiscal year in question is $8,464.65. Since this amount is less than that shown as the tax by the petitioner upon its return, namely, $8,500, the Board is without jurisdiction and the proceeding is

Dismissed.