DocketNumber： Docket No. 19201.
Judges： Aiiundell
Filed Date： 10/30/1929
Status： Precedential
Modified Date： 11/2/2024
*2181 1. The Revenue Acts of 1924 and 1926 do not limit to one agreement the number of consents the Commissioner and taxpayer may enter into for the assessment of taxes after the expiration of the five-year period provided for therein.
2. Assessment of the deficiencies for the years 1918 and 1919 is not barred by the statute of limitations, the consent agreements executed being effective to extend the time for assessment beyond the date of mailing of the deficiency letter.
*1114 The respondent has determined deficiencies in income and profits taxes for the years 1918, 1919, and 1920 in the respective amounts of $38,216.18, $39,289,50, and $29,121.61. The only issue involved in the proceeding is whether assessment of the deficiencies for the years 1918 and 1919 is barred by the statute of limitations, all other assignments of error having been abandoned at the hearing.
FINDINGS OF FACT.
The petitioner is a Missouri corporation with its principal office at Chicago, Ill.
The petitioner's return for the year 1918 was filed*2182 with the collector of internal revenue at Chicago, Ill., on June 16, 1919.
On February 9, 1924, the petitioner, by A. R. Virden, its secretary, executed, and on February 12, 1924, filed with the respondent an instrument, the material provisions of which read as follows:
*1115 FEBRUARY 12, 1924.
In pursuance of the provisions of subdivision (d) of Section 250 of the Revenue Act of 1921, the Thiel Detective Service Company of Chicago, Illinois, 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 Thiel Detective Service Co. for the year 1918 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 for one year from the date it is signed by the taxpayer.
On November 28, 1924, the respondent wrote the petitioner a letter reading in part as follows:
The Bureau*2183 desires to proceed in the regular manner to the consideration of any information submitted by you. However, the statutory period within which the Commissioner may assess additional taxes for the years 1918 and 1919 will expire presently, and in order to avoid the necessity of making an assessment prior to such consideration, it is requested that you sign and return to this office the enclosed forms of waiver within ten days from the date of this letter.
In order to protect your interests in view of the tolling of the statute of limitations for the making of refunds for the year 1919, it is suggested that you file a claim with the Collector of Internal Revenue for your district for any amount of overassessment you may think due which should be executed on the enclosed Form 843.
In compliance with the request made in the letter just referred to, the petitioner, through its president, M. A. Flanagan, on December 1, 1924, signed and transmitted to the respondent an instrument bearing the same date and reading, so far as is material here, as follows:
In pursuance of the provisions of existing Internal Revenue Laws, The Thiel Detective Service Company, Inc., a taxpayer, of 53 Jackson*2184 Boulevard, Chicago, Ills. and the Commissioner of Internal Revenue, hereby consent to extend the period prescribed by law for 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 said taxpayer for the year 1918 under the Revenue Act of 1924, 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 statutory period of limitation within which assessments of taxes may be made for the year or years mentioned, or the statutory period of limitation as extended by Section 277(b) of the Revenue Act of 1924, or by any waivers already on file with the Bureau.
The document was received by the respondent on December 4, 1924.
On February 8, 1926, the petitioner, by its president, signed a document bearing the same date, the pertinent provisions of which read*2185 as follows:
In pursuance of the provisions of existing Internal Revenue Laws Thiel Detective Service Company, a taxpayer of Chicago, Illinois, and the Commissioner *1116 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 1918, 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, 1926, 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 and (1) no appeal is filed therefrom with the United States Board of Tax Appeals then said date shall be extended sixty days, or (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.
The instrument was transmitted by the petitioner to its attorneys in Washington, D.C., by a letter dated February 12, 1926. The attorneys returned the instrument*2186 to the petitioner on February 13, 1926, with a request that the corporation's seal be affixed thereto. On February 15, 1926, the instrument, with the corporate seal affixed, was returned to the attorneys, who filed it with the respondent on February 17, 1926.
Petitioner's seal was affixed to the document dated February 8, 1926, by Paul J. Doyle, its general manager since January 1, 1921. He also signed the letters dated February 12, 1926, and February 15, 1926, transmitting the instrument to petitioner's attorneys. Doyle did not know on February 12, 1926, when transmitting the document to the attorneys, that the statute of limitations for the assessment of taxes against the petitioner for the year 1918 had expired.
The petitioner's return for the year 1919 was filed with the collector of internal revenue at Chicago, Ill., on February 10, 1920.
On November 19, 1924, the petitioner by its president, executed, and on November 25, 1924, filed an instrument with the respondent, of which the following is the material provision:
In pursuance of the provisions of existing Internal Revenue Laws, The Thiel Detective Service Company, Inc., a taxpayer, of Chicago, Illinois, and the*2187 Commissioner of Internal Revenue, hereby consent to extend the period prescribed by law for 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 said taxpayer for the year 1919 under the Revenue Act of 1924, 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 statutory period of limitation within which assessments of taxes may be made for the year or years mentioned, or the statutory period of limitation as extended by Section 277(b) of the Revenue Act of 1924, or by any waivers already on file with the Bureau.
On December 1, 1924, the petitioner's president, pursuant to the request made by the respondent in his letter of November 28, 1924, *1117 executed on behalf of the petitioner and transmitted by letter to the respondent, an instrument*2188 reading in part as follows:
In pursuance of the provisions of existing Internal Revenue Laws, The Thiel Detective Service Co., Inc., a taxpayer, of 53 Jackson Boulevard, Chicago, Ills., and the Commissioner of Internal Revenue, hereby consent to extend the period prescribed by law for 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 said taxpayer for the year 1919 under the Revenue Act of 1924, 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 statutory period of limitation within which assessments of taxes may be made for the year or years mentioned, or the statutory period of limitation as extended by Section 277(b) of the Revenue Act of 1924, or by any waivers already on file with the Bureau.
The document was received by the respondent*2189 on December 4, 1924.
All of the aforementioned so-called waivers now bear the Commissioner's signature.
Paul J. Doyle had charge of, and supervision over, the handling of petitioner's tax matters for the years 1918, 1919, and 1920. At the time the respondent's letter dated November 28, 1924, was received by the petitioner and instruments requested therein by the former were executed by the latter, Doyle was absent from his office on account of illness. He never gave any consideration to the request made in the letter. Nor did he personally investigate the limitations question involved in connection with the execution of the instruments bearing dates of February 12, 1924, November 19, 1924, and February 8, 1926. He referred such questions to petitioner's attorneys for advice as to the action to be taken. All of the instruments filed with the respondent except the two executed on December 1, 1924, were transmitted by Doyle to petitioner's attorneys for filing. The instruments executed on December 1, 1924, were mailed direct to the respondent by petitioner's president. No action was ever taken by the petitioner to cancel the instruments executed on December 1, 1924.
The*2190 notice of deficiency from which this appeal was taken was mailed to the petitioner on June 10, 1926. The petition was filed on August 9, 1926. No assessments have been made for the taxes asserted in the deficiency letter.
OPINION.
ARUNDELL: Petitioner's first contention is that the Revenue Acts of 1924 and 1926 permit the Commissioner and a taxpayer to enter into but one consent agreement extending the period within which a *1118 tax may be assessed beyond the statutory period, and that second and later so-called waivers are without legal effect.
Section 278(c) of the Revenue Acts of 1924 and 1926 provides:
Where both the Commissioner and the taxpayer have consented in writing to the assessment of the tax after the time prescribed in section 277 for its assessment the tax may be assessed at any time prior to the expiration of the period agreed upon.
Counsel argues that when reading the above quoted provision with section 277 of the same acts, which section allows the Commissioner five years within which to assess taxes for the taxable years, a second consent agreement would not be an extension of the five-year period prescribed by the statute, but of such period, *2191 plus the period agreed upon in the first consent, and therefore void because not authorized by the statute.
Statutes of limitation barring the right of the United States to collect taxes must be strictly construed in favor of the Government. , and . In , certiorari denied October 14, 1929, the court, in construing the provisions of section 278(d) of the 1926 Act, said that the words "statutory period of limitation applicable thereto" appearing in said section, were intended to include both the five-year period allowed by the statute within which to make assessments, and such period, plus any additional time agreed to in a consent agreement, each period being a statutory period, since the Act provides for them both.
The language of section 278(c) does not specifically place any limitation on the number of times the Commissioner and a taxpayer may consent in writing to an assessment of taxes after the five-year period provided in section 277. The section merely provides*2192 that where a written consent has been entered into, agreeing to an assessment "after the time prescribed in section 277" the tax may be assessed at any time within the period agreed upon, without any manifest intention on the part of Congress to limit the number of consents to one.
Counsel calls our attention to the provisions of section 506(a) of the 1928 Act, amending section 278(c) of the 1926 Act by providing that the additional period agreed upon for making an assessment "may be extended by subsequent agreements in writing made before the expiration of the period previously agreed upon," and argues that this provision denotes a change in the law. With this view we can not agree. It is our opinion that section 506(a) of the 1928 Act is merely declaratory of the law as it had theretofore been uniformly construed.
*1119 The validity of the consent agreement executed on February 8, 1926, for the year 1918, is also being questioned on the ground that it was not entered into prior to the expiration of the five-year period allowed by the statute for assessment as extended by the consent agreement dated December 1, 1924. The facts as to this consent agreement, briefly*2193 stated, are these. On February 8, 1926, the petitioner executed, and four days later, forwarded to its attorneys in Washington, D.C., for filing with the respondent, an instrument to further extend the time for assessment of 1918 taxes to December 31, 1926. The attorneys returned the document to the petitioner on February 13, 1926, with the request that its corporate seal be affixed thereto. The paper, with the seal affixed, was returned to the attorneys on February 15, 1926, and was filed by them with the respondent on February 17, 1926. The correspondence with the attorneys was handled by Paul J. Doyle, petitioner's general manager, who did not know at the time the consent agreement was first mailed to the attorneys that the limitation period for the assessment of taxes for the year 1918 had expired.
Petitioner's counsel contends that the decision of the question is controlled by , reversing . The facts in the
The contention being made that the consent executed on February 8, 1926, is void for lack of consideration is without merit. ; ;
The final claim of the petitioner as to the year 1918 is that the respondent, by not showing when the consent dated February 8, 1926, was*2195 signed by him, has failed to prove the exception to the statute in section 278(a) of the 1926 Act. This argument has heretofore been decided contrary to the petitioner's claim. , and cases cited.
As to the year 1919, the petitioner contends that the consent agreement executed on December 1, 1924, extending the period of assessment one year after the expiration of the consent signed on November *1120 19, 1924, was obtained through inaccurate statements made in the respondent's letter of November 28, 1924, concerning the expiration of the period for assessment, and for that reason it is invalid.
It is difficult to see how the statements made in the respondent's letter could have misled the petitioner. Both consents were signed by the petitioner's president, who must have known at the time he signed the second consent that he had executed a similar one for the same year about two weeks previously, and intended, as its terms clearly provide, that the second one should extend the period for assessment designated in the first one. No action was ever taken by the petitioner to cancel the December 1, 1924, consent agreement. *2196 It appears from the statement attached to the deficiency letter that the merits of the petitioner's tax liability for the taxable years were discussed with a representative of the respondent on May 17, 1926. Neither the original petition filed on August 1, 1926, nor the first amended petition filed four days later, questioned the effectiveness of the consent agreement. It was not until February 7, 1929, when the second amended petition was filed, that the limitations issue was raised. The respondent has at all times proceeded under the assumption that the petitioner regarded the second consent agreement binding according to its terms. In our opinion the consent agreement executed on December 1, 1924, is valid and effective. See ;
The returns of the petitioner for the respective taxable years were filed on June 16, 1919, and February 10, 1920. The several consent agreements extended the time for assessment of taxes for the year 1918 to December 31, 1926, and for the year 1919 to February 10, 1927. *2197 The deficiency letter was mailed on June 10, 1926, a date within the time allowed by the statute, as extended by the consents. It follows, therefore, that assessment of the deficiencies is not barred by the statute of limitations.