DocketNumber： Docket No. 7888.
Citation Numbers： 9 B.T.A. 617, 1927 BTA LEXIS 2546
Judges： Littleton
Filed Date： 12/17/1927
Status： Precedential
Modified Date： 11/20/2020
*2546 1. Written consents extending the statute of limitation for assessment and collection of income and profits tax executed by the petitioners, filed with the Commissioner of Internal Revenue and signed "D. H. Blair, Commissioner," are not rendered void by a mere showing that the Commissioner did not personally sign his name thereto.
2. It is held upon consideration of the provisions of the several written consents extending the statute of limitation for assessment and collection of a tax that the period specified therein had not expired at the date of the mailing of the deficiency notice upon which this proceeding is predicated.
3. In 1925 the Commissioner mailed to the petitioners statutory notices of his determination of a deficiency before the expiration of the time specified in the last written consents extending the statute of limitation; the petitioners within 60 days filed an appeal with the Board and before the expiration of the period specified in the consents the Revenue Act of 1926 was approved.
*2547 4. Petitioner's plea of the statute of limitation is not well taken and is accordingly overruled.
*617 The Commissioner held that petitioners were affiliated for the period April 30, 1917, to December 30, 1917, and determined a deficiency of $35,804.55 in respect of the tax of the Ohio & Big Sandy Coal Co. and a deficiency of $346,833.89 in respect of the tax of the United Thacker Coal Co., the total additional tax against the affiliated group being $382,638.44. Hearing was confined to petitioners' plea that the statute of limitation had barred the assessment and collection of the additional tax claimed by the Commissioner.
FINDINGS OF FACT.
The Ohio & Big Sandy Coal Co., hereinafter referred to as the Ohio Company, was a Virginia corporation with principal office in New York, N.Y. It was duly dissolved on December 29, 1917, since which time its directors have been trustees of the assets for *618 the benefit of the creditors and stockholders pending final disposition of the Federal tax question.
The*2548 United Thacker Coal Co., subsidiary, hereinafter referred to as the Thacker Company, is a Maine corporation with principal office at Bangor.
The Federal Gas, Oil & Coal Co. is also a Maine corporation with principal office at New York, N.Y.
T. Irving Hadden is, and was during the taxable period, secretary, treasurer and president, respectively, of the Ohio Company and the Thacker Company. On August 17, 1925, the Commissioner mailed a statutory deficiency notice to the Ohio Company and on September 25, 1925, mailed a statutory deficiency notice to the Thacker Company. No deficiency notice was mailed to the Federal Gas, Oil & Coal Co., subsidiary.
On June 24, 1918, the Ohio Company filed an income and profits-tax return for the fiscal period ending April 30, 1918. On July 18, 1918, the Thacker Company filed an income and profits-tax return for the fiscal period ending April 30, 1918.
The deficiencies determined by the Commissioner for the period April 30, 1917, to December 20, 1917, have not been assessed.
On January 16, 1923, petitioners executed and delivered to the Commissioner of Internal Revenue a written consent extending the period of limitation for the determination, *2549 assessment and collection of income and profits tax of 1917 to April 1, 1924, on which consent there was subsequently written "Approved. D. H. Blair, Commissioner of Internal Revenue. Date January 19, 1923. A.H.F." This document was in words and figures following:
January 16th, 1923.
INCOME AND PROFITS TAX WAIVER BY OHIO AND BIG SANDY COAL COMPANY, UNITED THACKER COAL CO. AND FEDERAL GAS, OIL AND COAL COMPANY.
In pursuance of the provisions of subdivision (d) of Section 250 of the Revenue Act of 1921,
OHIO AND BIG SANDY COAL COMPANY, a corporation organized under the laws of the State of Virginia, (dissolved in 1917),
UNITED THACKER COAL CO., a corporation organized and existing under the laws of the State of Maine,
FEDERAL GAS, OIL AND COAL COMPANY, a corporation organized and existing under the laws of the State of Maine, and the Commissioner of Internal Revenue, hereby severally consent to a determination, assessment and collection
at any time on or before the first day of April 1924, T.I.H. of the amount of income, excess-profits, or war-profits taxes due under any return made by or on behalf of said corporation for the year 1917, under the Revenue Act of 1921*2550 or under prior income, excess-profits, or war-profits taxes Acts, or under Section 38 of *619 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, irrespective of any period of limitations.
(Seal) OHIO AND BIG SANDY COAL COMPANY,
By T. Irving Hadden,
Secretary and Treasurer.
(Seal) UNITED THACKER COAL CO.,
By T. Irving Hadden,
President.
(Seal) FEDERAL GAS, OIL AND COAL COMPANY,
By B. Forsdike,
Vice-President.
Approved: D. H. Blair,
A.H.F.
Commissioner of Internal Revenue.
Date Jan. 19, 1923.
On January 8, 1924, the Ohio Company and the Thacker Company each executed and delivered to the Commissioner of Internal Revenue a written document entitled "Income and Profits Tax Waiver" on each of which there was signed the name of the Commissioner of Internal Revenue. These documents were in words and figures following:
*620 January 8th, 1924.
INCOME AND PROFITS TAX WAIVER.
In pursuance of the provisions of subdivision (d) of Section 250 of the Revenue Act of 1921, OHIO AND BIG SANDY COAL COMPANY, of No. 1 Court Square Bldg. *2551 , Charlottesville, Virginia, 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 OHIO AND BIG SANDY COAL COMPANY for the years 1917 and 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, irrespective of any period of limitations. This waiver shall remain in full force and effect until March 15, 1925.
OHIO AND BIG SANDY COAL COMPANY
Taxpayer
(Seal) By T. Irving Hadden,
Secretary and Treasurer.
Commissioner. S.A.
Jan. 10, 1924.
Attest:
Secretary.
January 8th, 1924.
INCOME AND PROFITS TAX WAIVER.
In pursuance of the provisions of subdivision (d) of Section 250 of the Revenue Act of 1921, UNITED THACKER COAL COMPANY, of No. 2 Hammond Street, Bangor, Maine, and the Commissioner of Internal Revenue hereby consent to a determination, *2552 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 UNITED THACKER COAL COMPANY for the years 1917 and 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, irrespective of any period of limitations. This waiver shall remain in full force and effect until March 15, 1925.
UNITED THACKER COAL COMPANY,
Taxpayer.
(Seal) By T. Irving Hadden,
President.
Commissioner, S.A.
Jan. 10, 1924.
Attest:
Charles A. Palmer,
Treasurer.
On November 24, 1924, the Ohio & Big Sandy Coal Co. and the United Thacker Co. each executed and delivered to the Commissioner of Internal Revenue a document entitled "Income and Profits Tax Waiver" on which there was signed the name of the Commissioner of Internal Revenue. These documents were in words and figures following:
November 24, 1924.
INCOME AND PROFITS TAX WAIVER.
In pursuance of the provisions*2553 of the existing Internal Revenue laws, OHIO AND BIG SANDY COAL COMPANY, a taxpayer, of No. 1, Court Square Bldg., Charlottesville, Virginia, 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 1917 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 *621 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.
OHIO AND BIG SANDY COAL COMPANY,
Taxpayer.
(Seal) By T. Irving Hadden,
*2554 Secretary and Treasurer.
Commissioner, L.T.L.
Attest:
Secretary.
November 24, 1924.
INCOME AND PROFITS TAX WAIVER
In pursuance of the provisions of existing Internal Revenue Laws, UNITED THACKER COAL COMPANY, a taxpayer, of No. 2 Hammond Street, Bangor, Maine, 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 1917 under the Revenue Act of 1924, or under prior income, excess-profits taxes due under any return made by 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*2555 Revenue Act of 1924, or by any waivers already on file with the Bureau.
UNITED THACKER COAL COMPANY,
Taxpayer,
(Seal) By T. Irving Hadden,
President.
Commissioner. L.T.L.
Attest:
Charles A. Palmer,
Treasurer.
The signature "D. H. Blair" appearing upon each of the original consents is not the personal handwriting of D. H. Blair, Commissioner of Internal Revenue.
On December 28, 1923, the following letter was mailed to the Ohio Company, accompanied by a detailed computation of the tax liability for the period ended December 20, 1917, showing an additional tax in *622 the amount of $379,981.41 against the Thacker Company and an additional tax of $37,415.52 against the Ohio Company:
Dec. 28, 1923.
Ohio and Big Sandy Coal Company,
C/o T. Irving Hadden, Secretary,
141 Broadway,
New York N.Y.
Sirs:
A reexamination of your income tax returns has been made in connection with your appeal dated June 8, 1923, protesting the proposed adjustments of your income tax as outlined in Bureau letter dated May 15, 1923, and the results thereof are contained in the attached schedules.
If you are not in accord with the revised adjustments*2556 it is requested that you advise this office to that effect within twenty days from the date of this letter (making reference to IT:NR:G-OM-5:App) noting specifically the items in the appeal which you wish submitted to the Committee on Appeals and Review.
If no exceptions to the reaudit are filed within the period mentioned above immediate assessment will be made, no claim in abatement of which will be entertained.
* * *
Respectfully,
The statement containing the detailed computation attached to the above letter contained, among others, the following statement:
Waivers for 1917 have been filed.
The additional tax liability shown above supersedes that proposed in office letter dated May 15, 1923, * * * Carrying charges for taxable period as disclosed by brief filed September 25, 1923, $254,008.87. * * * Book value of property June 30, 1917, as disclosed by brief dated September 24, 1923, $5,792,276.03. * * * Charges to property account as disclosed by brief dated September 24, 1923, $26,166.60. * * *
On August 13, 1924, the following letter was mailed to the Ohio Company accompanied by a detailed computation concerning the*2557 tax liability of that company and its affiliated corporation, the Thacker Company:
TREASURY DEPARTMENT
Washington
August 13, 1924.
Office of
Commissioner of Internal Revenue
IT:CR:G:OM:5
Ohio and Big Sandy Coal Company,
C/o T. Irving Hadden, Secretary,
141 Broadway, New York N.Y.
Sirs:
The determination of your tax liability for the taxable year 1917 disclosed a deficiency in tax amounting to $35,804.55. The adjustments made are shown in detail in the attached schedules.
*623 You are granted 30 days from the date of this letter within which to present a protest, supported by additional evidence or brief, against this determination of a deficiency. Upon request submitted within the period mentioned, you will also be granted a hearing in the Bureau with reference to the matter.
A request for a hearing should contain (a) the name and address of the taxpayer; (b) in the case of a corporation, the name of the State of incorporation; (c) a designation by date and symbol of the notice or notices with respect to which the hearing is desired; (d) a designation of the year or years involved and a statement of the amount of tax in dispute for each year; *2558 (e) an itemized schedule of the findings of the unit to which the taxpayer takes exception; and (f) a summary statement of the grounds upon which the taxpayer relies in connection with each exception.
If, after consideration of any additional evidence submitted and any arguments advanced by you, a deficiency is finally determined by the Bureau to be due from you, you will, in accordance with the provisions of Section 274 of the Revenue Act of 1924, be advised by registered mail of the final determination of the Commissioner as to the amount of the deficiency, and allowed 60 days from the mailing of the letter in which to file an appeal to the Board of Tax Appeals in the event you do not acquiesce in such final determination.
If you acquiesce in the determination of a deficiency as disclosed in this letter and the accompanying statements, you are requested to sign the enclosed agreement consenting to the assessment of such deficiency, and forward it to the Commissioner of Internal Revenue, Washington, D.C., for the attention of IT:CR:G:OM-5. In the event that you acquiesce in a part of the determination, the agreement should be executed with respect to the items agreed to.
*2559 Respectfully,
Enclosures:
Statements
Agreement - Form A
Schedules 1 to 6, Incl.
On August 15, 1924, the following letter accompanied by statements was mailed to the Thacker Company:
TREASURY DEPARTMENT
Washington
August 15, 1924.
Office of
Commissioner of Internal Revenue
IT:CR:G:OM:5
United Thacker Coal Company,
C/o T. Irving Hadden, President.
141 Broadway, New YorkN.Y.
Sirs:
The determination of your tax liability for the taxable year 1917 disclosed a deficiency in tax amounting to $346,833.89. The adjustments made are outlined in schedules transmitted to the Ohio and Big Sandy Coal Company. Valid waiver on file.
You are granted 30 days from the date of this letter within which to present a protest, supported by additional evidence or beief, against this determination of a deficiency. Upon request submitted within the period mentioned, you will also be granted a hearing in the Bureau with reference to the matter.
*624 A request for a hearing should contain (a) the name and address of the taxpayer; (b) in the case of a corporation, the name of the State of incorporation; (c) a designation*2560 by date and symbol of the notice of notices with respect to which the hearing is desired; (d) a designation of the year or years involved and a statement of the amount of tax in dispute for each year; (e) an itemized schedule of the findings of the Unit to which the taxpayer takes exception; and (f) a summary statement of the grounds upon which the taxpayer relies in connection with each exception.
If, after consideration of any additional evidence submitted and any arguments advanced by you, a deficiency is finally determined by the Bureau to be due from you, you will, in accordance with the provisions of Section 274 of the Revenue Act of 1924, be advised by registered mail of the final determination of the Commissioner as to the amount of the deficiency, and allowed 60 days from the mailing of the letter in which to file an appeal to the Board of Tax Appeals in the event you do not acquiesce in such final determination.
If you acquiesce in the determination of a deficiency as disclosed in this letter and the accompanying statements, you are requested to sign the enclosed agreement consenting to the assessment of such deficiency, and forward it to the Commissioner of Internal*2561 Revenue, Washington, D.C., for the attention of IT:CR:G:OM:5. In the event that you acquiesce in a part of the determination, the agreement should be executed with respect to the items agreed to.
Respectfully,
Enclosures:
Statements
Agreement - Form A
The statements containing the computation accompanying these letters showed an additional tax for the period ending December 20, 1917, of $35,804.55 against the Ohio Company and an additional tax of $346,833.89 against the Thacker Company. These statements included, among others, the following:
Waivers for 1917 and 1918 have been filed.
The additional tax shown above supersedes that proposed in Bureau letter dated December 28, 1923, * * *
In accordance with agreement in conference held January 25, 1924, disbursement for legal expense, stumpage, surveying and prospecting, * * * as disclosed by your supplemental brief dated September 24, 1923, are considered * * * Your application for the determination of your excess-profits tax liability under the provisions of Section 210 of the Revenue Act of 1917 has been considered * * *.
On August 17, 1925, the Commissioner mailed to*2562 the Ohio Company the statutory notice of his determination showing the deficiencies hereinbefore mentioned against it and the Thacker Company. This notice stated, among other things, that "Waiver filed November 24, 1924, is in effect until March 15, 1926. Waiver filed November 24, 1924, by the United Thacker Coal Company (subsidiary) is in effect until March 15, 1926."
*625 On September 25, 1925, the Commissioner mailed to the Thacker Company the statutory notice of his determination showing the deficiencies hereinbefore mentioned against it and the Ohio Company. This notice stated that "Waiver filed November 24, 1924, is in effect until March 15, 1926."
OPINION.
LITTLETON: Sections 322 and 323 of the U.S. Revised Statutes, section 1301(a) of the Revenue Act of 1918, and section 1 of the Urgent Deficiency Appropriation Act, October 6, 1917, 40 Stat. 348, provide for the appointment of deputy commissioners and an assistant to the Commissioner of Internal Revenue. These provide that the deputy commissioner shall act as Commissioner of Internal Revenue in case of the absence of that officer. Like duties were prescribed for the assistant to the Commissioner. Section*2563 1 of the Act of October, 6, 1917, 40 Stat. 348, provides that -
The Commissioner of Internal Revenue is authorized to assign to Deputy Commissioners such duties as he may prescribe, and the Secretary of the Treasury may designate any one of them to act as Commissioner of Internal Revenue during the Commissioner's absence.
Nothing appears in the record of this proceeding to indicate that the placing of the signature of the Commissioner of Internal Revenue approving the consents extending the statute of limitation was not a valid act. See ; ; ; ; .
The consents were delivered to the Commissioner and they have at all times since remained in his official files and the evidence shows that from December 28, 1923, to the date of the mailing of the deficiency notices the Commissioner and the petitioners have recognized that valid consents were on file with the Commissioner. Conferences between*2564 the petitioners and the Commissioner concerning the petitioners' tax liability for the taxable period involved were held from time to time and apparently both relied upon the fact that the written consents were effective. The several letters very clearly show that the Commissioner's office considered the consents as valid. This fact was stated in every letter that was mailed to the petitioners including the Commissioner's final notice to the petitioners of his determination under the statute.
The Commissioner is presumed to discharge his official duties in a proper and legal manner and such presumption is not overcome by the mere showing that the signature of the Commissioner upon the consent is not in his personal handwriting. It is a general principle *626 to presume that public officials act correctly, in accordance with the law and their instructions, until the contrary appears. , citing , and *2565 .
In , the Circuit Court of Appeals said:
In order to overcome the presumption that a collector of customs in selecting a merchant appraiser of imported merchandise under Section 2930, Rev. St., made a proper appointment, it is not enough to create a mere uncertainty. It must be clearly shown that the appointee did not meet the statutory requirement of being "familiar with the character and value of the goods in question."
In , cited and approved in , the court said:
The fact that an official marriage license was issued carries with it a presumption that all statutory prerequisites thereto had been complied with. This is the general rule in respect to official action, and one who claims that any such prerequisite did not exist must affirmatively show the fact. ; *2566 ; ; ; ; ; ; .
In , the court said:
In saying that the appraisers had no right to act without the previous request of the collector, and that no such request appears in the evidence, nothing is stated beyond the truth. But, in the absence of testimony to the contrary, the legal presumption is, that the appraisers and collector both did their duty, he requesting their action, as by law he might, and they complying.
Besides this, it is conceded that he adopted their doings and such a subsequent ratification of them is undoubtedly tantamount to having requested them.
Even if it could be assumed, from the mere showing that the consents were not personally signed by the Commissioner of Internal Revenue, that they did not then become effective so as to suspend the*2567 running of the statute, the record is sufficient to show that the Commissioner's office considered the consents valid and that the Commissioner himself, even if he had not done so before, ratified and approved that which had been done when he made his final determination of the deficiencies and mailed notices thereof to the petitioners.
The Board is of the opinion that the claim of the petitioners that the consents were void and of no effect is not well taken.
Petitioners further claim that assessment and collection of any tax from the Ohio Company was barred on July 1, 1921, because of failure of the Commissioner to discover and additional tax within three years after the time the return was due and that assessment and collection of any tax from the Thacker Company was barred on September 1, 1921, for the same reason. There has been no *627 showing that the Commissioner did not discover the understatement of income within three years after the returns were due. Furthermore, the Board has held that section 1106 of the Revenue Act of 1926 is not retroactive and, also, that the taxpayer and the Commissioner may enter into a valid consent for the assessment and collection*2568 of a tax after the expiration of the statute of limitation. . Section 250(d) of the Revenue Act of 1921 provides that the amount of income, excess-profits, or war-profits taxes due under any return made "under prior income, excess-profits, or war-profits tax Acts, or under section 38 * * * shall be determined and assessed within five years after the return was filed, unless both the Commissioner and the taxpayer consent in writing to a later determination, assessment, and collection of the tax." The evidence shows that consents for a later determination and assessment of the tax were entered into before the expiration of the five-year period prescribed in the Revenue Act of 1921. The claim of the petitioners that the tax is barred upon this ground is denied.
It is next argued on behalf of the petitioner that in any event the right of the Commissioner to make assessment of the 1917 tax terminated under the several consents on March 15, 1925. The first joint consent of January 16, 1923, extended the period for assessment and collection until April 1, 1924. The second consents of January 8, 1924, extended the period for assessment and*2569 collection to March 15, 1925. Thereafter, on November 24, 1924, the Ohio Company and the Thacker Company entered into consents with the Commissioner for a further extension of the statutory period of limitation. These consents provided that -
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 tax may be made for the year or years mentioned or the statutory period of limitations as extended by section 277(b) of the Revenue Act of 1924 or by any waivers already on file with the Bureau.
The Commissioner's determinations were made in August and September, 1925. The appeal was filed with this Board on October 7, 1925. All before the expiration of the period agreed upon.
We think these consents operate to extend the period within which the Commissioner might make his determination in respect of the tax for 1917 to March 15, 1926, a period of one year after the expiration of the time agreed upon in the consents then on file with the Commissioner.
Finally, it is insisted on behalf of the petitioners that even though the consents*2570 of November 24, 1924, served to extend the limitation to March 15, 1926, there is no provision in the Revenue Act of 1926 *628 that would operate to further extend the period beyond that date notwithstanding on March 15, 1926, a proper and valid appeal was and has since been pending before the Board. The substance of the petitioners' claim is that section 277(b) of the Revenue Act of 1926 providing for the suspension of the limitation period, does not apply to a case in which a deficiency notice was mailed prior to the enactment of the Revenue Act of 1926.
Section 283(b) of the Revenue Act of 1926 provides:
If before the enactment of this Act any person has appealed to the Board of Tax Appeals under subdivision (a) of section 274 of the Revenue Act of 1924 (if such appeal relates to a tax imposed by Title II of such Act or to so much of an income, war-profits, or excess-profits tax imposed by any of the prior Acts enumerated in subdivision (a) of this section as was not assessed before June 3, 1924), and the appeal is pending before the Board at the time of the enactment of this Act, the Board shall have jurisdiction of the appeal. In all such cases the powers, duties, *2571 rights, and privileges of the Commissioner and of the person who has brought the appeal, and the jurisdiction of the Board and of the courts, shall be determined, and the computation of the tax shall be made, in the same manner as provided in subdivision (a) of this section, * * *.
Section 283(a) of the 1926 Act provides that if after the enactment of the Act the Commissioner makes a determination under any prior revenue Act, he is authorized to send by registered mail to the person liable for such tax notice of the amount proposed to be assessed, which notice shall be considered a notice under subdivision (a) of section 274 of this Act, and that "in the case of any such determination the amount * * * shall, except as provided in subdivision (d) of this section, be computed as if this Act had not been enacted, * * *."
Section 274(a) of the 1926 Act provides for the mailing of the deficiency letter. It further provides that no assessment, except in jeopardy cases, shall be made until the decision of the Board has become final in all cases where appeals have been taken to the Board.
Section 277(b) of the 1926 Act provides that the statute of limitations "shall (after the mailing*2572 of a notice under subdivision (a) of section 274) be suspended for the period during which the Commissioner is prohibited from making the assessment, * * *."
Considering together the several provisions of the 1926 Act, the Board is of the opinion that since an appeal was pending at the time of the enactment of the 1926 Act, and the limitation period as extended by waivers had not then expired, the limitation period is suspended during the pendency of the case before the Board whose decision had been asked prior to the enactment of the 1926 Act and the right to have which was preserved and secured to both parties by section 283(b) of the Act, which specifically confers jurisdiction on *629 the Board of such appeals. In the opinion of the Board, "the mailing of a notice under subdivision (a) of section 274" of the 1926 Act is not a condition precedent to the continued suspension of the running of the statutory period of limitation or the period of limitation specified in the mutual consent of the parties, where a deficiency notice has been mailed (as in the instant case) and an appeal has been taken therefrom and is pending before the Board at the time of the enactment of the*2573 1926 Act.
It is the opinion of the Board that these provisions of the 1926 Act operate to continue the suspension of the limitation period until after the decision of the Board has become final.
As indicating what Congress intended, it is stated in the report of the Conference Committee on the Revenue Act of 1926 at page 48, as follows:
Section 277(b) of the bill as agreed to in conference provides for the suspension of the running of the statute of limitation on assessments and collections during the time when the hands of the Commissioner are tied, not only in the cases of tax imposed by this title, but also (by reason of the provisions of section 283) in the cases of taxes under prior Acts, whether a deficiency letter under the 1924 Act has been sent out or not.
As further indicated on the same page of the conference report, section 283(1) of the 1926 Act was an additional provision relating to the suspension of the limitation period.
The deficiencies are not barred and the plea of the statute of limitation is denied.
The proceeding will be restored to the calendar for hearing on the merits in due course.
Reviewed by the Board.