DocketNumber： Docket No. 14423.
Citation Numbers： 1929 BTA LEXIS 2644, 16 B.T.A. 105
Judges： Artjndell, Smith, Gen, Littleton, Stern, Agree
Filed Date： 4/22/1929
Status： Precedential
Modified Date： 11/20/2020
*2644 Petitioner filed returns for the years 1918 and 1919 on the basis of calendar years. The return for 1918 disclosed no tax and none has been assessed. In his audit the Commissioner held, and the taxpayer agreed, that the tax liability should be determined upon the basis of the fiscal year ending October 31. In November, 1924, after corresponding with respect to the fiscal year ended October 31, 1919, petitioner and the Commissioner entered into a written consent extending the period prescribed by law for the determination, assessment and collection of "any tax due under any return for the year 1919." The Commissioner determined a deficiency for the fiscal year ending October 31, 1919, two-twelfths of which is the tax computed upon the petitioner's income for November and December, 1918. The statute of limitations for the determination, assessment and collection of a tax for the calendar year 1918 expired before any consent was executed and before the Commissioner's determination was made.
*105 The Commissioner determined a deficiency in income and profits tax of $25,875.96 for the fiscal year ended October 31, 1919. The issue is whether the collection of that portion of the deficiency which is attributable to and represents a tax upon the income of the two-month period falling within the calendar year 1918 is barred by the statute of limitations properly applicable thereto.
*106 FINDINGS OF FACT.
The petitioner is an Ohio corporation with principal place of business at Cleveland. June 12, 1919, it filed a return for 1918 on Form 1120, which return was on a calendar year basis. No tax liability was disclosed on that return and no tax has been assessed for the calendar year 1918.
March 15, 1920, petitioner made and filed a return on Form 1120 on the basis of the calendar year 1919, showing a total tax of $463.74 which has been paid. An additional assessment of $258.39 for the same year was later made and collected.
November 25, 1924, the Deputy Commissioner wrote a letter to petitioner as follows:
Reference is made to office letter dated October 30, 1924, relative*2646 to your income and profits tax liability for the years ended October 31, 1919, to December 31, 1921, inclusive.
In view of the limitation of time for making additional assessments as provided in the Revenue Act of 1924, together with the desire of the Income Tax Unit to make additional assessments for the year 1919 only after careful consideration of all the facts in the case, it will be necessary to execute and return the enclosed form of waiver within ten days from the date of this letter in order that the audit of the return may be made without undue haste.
If the waiver is not filed within the time prescribed herein, assessment of any additional tax found due will be made in accordance with the provisions of Section 274 (d) of the Revenue Act of 1924.
In your reply please refer to the symbols IT:CA:2227-13.
Again on December 3, 1924, the Deputy Commissioner wrote the petitioner as follows:
Receipt is acknowledged of your letter dated November 28, 1924, relative to your income and profits tax liability for the years ended October 31, 1919, to December 31, 1921, inclusive.
You are advised that the information submitted by you will be given careful consideration. *2647 If any additional evidence is required you will be advised.
However, in view of the limitation of time for making additional assessments as provided in the Revenue Act of 1924, together with the desire of the Income Tax Unit to make additional assessments only after careful consideration of all the facts in the case, it will be necessary to execute and return the enclosed form of waiver within ten days from the date of this letter in order that the audit of the returns may be made without undue haste.
If the waiver is not filed within the time prescribed herein, assessment of any additional tax found due will be made in accordance with the provisions of Section 274 (d) of the Revenue Act of 1924.
In your reply please refer to the symbols IT:CA:2227-13.
On December 6, 1924, petitioner wrote the following letter to the Commissioner:
Replying to your letter of December 3d relative to Income and Profits Tax for years ended October 31, 1919 to December 31, 1921.
Waiver mentioned in your communication was executed and mailed to you on November 29, 1924. If however, it is not received in due time please advise and we will be glad to mail copy.
*107 Petitioner*2648 and the Commissioner executed a consent on November 29, 1924, the material portions of which are as follows:
In pursuance of the provisions of existing Internal Revenue Laws, The Leasing and Building Company, a taxpayer, of 1760 East 12th Street, Cleveland, Ohio, 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*2649 already on file with Bureau.
February 26, 1926, the Commissioner advised the petitioner that a jeopardy assessment of $25,875.96 for the fiscal year ended October 31, 1919, had been made, and the petitioner, within the required time, filed an abatement claim against the amount so assessed. April 6, 1926, petitioner was advised that its claim in abatement had been rejected and on April 17, 1926, the notice of deficiency for the fiscal year ended October 31, 1919, was mailed to the petitioner from which this proceeding was brought.
The correct tax for the fiscal year ended October 31, 1919, is $14,381.59 of which $3,689.20 represents two-twelfths of the tax for the said fiscal year computed at 1918 rates, and $10,692.39 represents ten-twelfths of the tax for the said fiscal year computed at 1919 rates.
OPINION.
LITTLETON: The petitioner concedes that $10,692.39 of the total deficiency determined, representing the tax for 10 months of the calendar year 1919 may be collected, but contends that any tax determined upon its income for the calendar year 1918, or any part of the fiscal year 1919 which falls within the calendar year 1918, is barred by the statute of limitations*2650 properly applicable thereto.
In support of this contention, the petitioner takes the position (1) that the consent of November 29, 1924, related solely to the calendar year 1919, a return for that year having been made upon such basis, and that it does not, therefore, authorize the assessment and collection of a deficiency not attributable to the calendar year 1919, and (2) that the return for 1918 having been made on a calendar year basis and filed on June 12, 1919, the period within which assessment and collection of any deficiency in tax for that year or any part *108 thereof expired on June 12, 1924, pursuant to the limitation provided by law.
The Commissioner, on the other hand, contends that the written consent covers the fiscal period begun November 1, 1918, and ended October 31, 1919, and that, therefore, no portion of the deficiency is barred, inasmuch as it was assessed within the period of limitation as extended by the consent.
The consent in question provides for an extension of the period prescribed by law for the determination, assessment, and collection of the amount of income and profits taxes "due under any return made by or on behalf of said taxpayer*2651 for the year 1919." Both of the parties hereto lay great stress upon the meaning of the expression "the year 1919," the Commissioner contending, on the one hand, that in view of the circumstances herein, it means the fiscal year 1919, and the petitioner contending that, since a return for 1919 was made on the calendar year basis, it can only relate to the calendar year 1919.
The controversy, therefore, is narrowed to the question whether the written consent operated to give the Commissioner the right to determine, assess and collect any deficiency in respect of petitioner's income for 1918. The statute of limitations in respect of the determination, assessment and collection of any tax for the calendar year 1918 began to run upon the filing of the return for 1918, or June 12 1919, notwithstanding such return was upon an erroneous basis. . The five-year period of limitation relating to the year 1918, therefore, expired June 12, 1924, more than five months before the date of the Commissioner's letters and the execution of the consent in question.
In view of the peculiar facts in this case, we are of opinion that assessment and*2652 collection of $3,689.20 of the total deficiency claimed by the Commissioner which relates to the calendar year 1918 is barred by the statute of limitations. The consent in question was prepared and sent to the petitioner by the Commissioner for execution, and in the letter of November 25, 1924, transmitting the same and requesting that it be executed, the Commissioner advised the petitioner that the execution of the consent would be necessary "In view of the limitation of time for making additional assessments, * * * with the desire of the Income Tax Unit to make additional assessments * * * only after careful consideration of all the facts in the case." Later, on December 3, 1924, the Commissioner then wrote the petitioner that in view of the limitation of time for making additional assessments it would be necessary for it to execute a waiver within ten days. In view of the uncertainty in the language of the consent as to whether it was intended to cover also the last two months of the calendar year 1918 and the language of the Commissioner's letters *109 that he desired to be protected against the limitation of time for "making additional assessments for the year 1919," *2653 we are of opinion that the consent can not be held to give the Commissioner the right to assess and collect that portion of the deficiency relating to the year 1918, as to which the statute of limitations expired before the requests for the consent were made and before the consent was executed by the parties.
Reviewed by the Board.
ARUNDELL, dissenting: The two letters from the Deputy Commissioner requesting a waiver for the year ended October 31, 1919, and petitioner's reply of December 6, 1924, acknowledging the receipt thereof and stating that the desired waiver had been executed and mailed, seem to me to establish beyond doubt that the waiver as given was intended to cover the fiscal year ended October 31, 1919. If this be true, assessment and collection is not barred.
SMITH, STERNHAGEN, and MORRIS agree with this dissent.