DocketNumber: Docket No. 21231.
Citation Numbers: 8 T.C.M. 345, 1949 Tax Ct. Memo LEXIS 218
Filed Date: 4/15/1949
Status: Non-Precedential
Modified Date: 11/21/2020
Order
MURDOCK, Judge: For reasons set forth in a Memorandum accompanying this order, it is
ORDERED, that the respondent's motion is granted and the proceeding is dismissed for lack of jurisdiction in so far as it relates to excess profits tax penalty for 1943.
Memorandum to Accompany Order Granting Motion to Dismiss in Part
MURDOCK, Judge: The Commissioner mailed a notice of deficiency to the petitioner dated September 20, 1948, in which he determined*219 deficiencies in income tax for 1942 and 1943, a deficiency in income tax penalty for 1943 and overassessments in excess profits tax and excess profits tax penalty for 1943. He explained that the penalty represented a 15 per cent addition to the tax under
The figures in the following table are taken from the statement attached to the notice above described:
1943 | Liability | Assessed | Overassessment |
Excess Profits Tax | $100,475.77 | $102,707.45 | $ 2,231.68 |
Addition to tax | 15,071.37 | 31,490.07 | 16,418.70 |
The petitioner did not assign any error relating to excess profits taxes for 1943 except with respect to the addition to the tax for failure to file the return on time. The respondent moved to dismiss the proceeding for lack of jurisdiction in so far as it relates to the penalty or addition to the excess profits tax for failure to file a timely return. The basis of the motion is that the notice upon which the petitioner relies for the jurisdiction of this Court did not determine a deficiency in*220 excess profits tax penalty for 1943 but, on the contrary, determined an overassessment, and a prerequisite to the jurisdiction of this Court is the mailing of a notice of deficiency. The parties were fully heard on that motion.
There would be a deficiency within the definition contained in section 271(a)(1) where the tax imposed exceeds the sum of the amount shown as the tax by the taxpayer on his return, plus amounts previously assessed as a deficiency. The petitioner recognizes that the notice upon which it relies shows an overassessment in the excess profits tax penalty, but it contends that the notice in fact determines a deficiency therein. Cf.
The petitioner claims that no part of the addition to the tax here in question was ever validly assessed and, therefore, the determination of an overassessment in penalty based*221 upon late filing of the return was a deficiency under the definition given above. Cf.