Torland v. Commissioner

TORLIEF TORLAND, PETITIONER, v. COMMISSIONER OF INTERNAL REVENUE, RESPONDENT. Torland v. Commissioner Docket No. 6019. United States Board of Tax Appeals 11 B.T.A. 35; 1928 BTA LEXIS 3880; March 16, 1928, Promulgated *3880 The petitioner, through his duly authorized agent, having prepared and filed a joint income-tax return for himself and wife for the year 1922, can not thereafter file a separate return under the community property laws of the State of Washington. William T. Beeks, Esq., for the petitioner. John E. Marshall, Esq., for the respondent. MORRIS *35 This is a proceeding for the redetermination of a deficiency in income tax of $470.37 for the year 1922. The sole question presented for consideration is whether the respondent erred in refusing to permit the petitioner to file an amended return on the community property basis. FINDINGS OF FACT. The petitioner is an individual, who, during the taxable year 1922, was married and living with his wife. Several months prior to the time when the petitioner became aware of the fact that he would be required to file an income-tax return for the year 1922 he was in Norway engaged in certain studies, where he intended sojourning for one or possibly two years. At that time he wrote the collector of internal revenue for his district apprising him of the fact that he did not have access to his books*3881 and requesting instructions as to the proper method to pursue in preparing his return. In reply to that communication the petitioner was advised by the collector to make a tentative return, which could be later amended upon his return to the United States. The petitioner thereupon prepared figures, from memory, in the form of a memorandum, which he sent to his father-in-law, Judge Claypool, with instructions to prepare and file his return, accompanied by a letter addressed to the Collector of Internal Revenue, Tacoma, Washington, dated December 20, 1922, as follows: Referring to your letter of Oct. 11, 1922, on my inquiry regarding my income tax return for 1922, I am hereby sending through my father-in-law, Judge C. E. *36 Claypool, my income tax return for 1922. Without my books here it has been hard to reach exact figures. I have therefore computed it after memory as near correct as possible. I reserve myself the right later on after my return from Europe in August 1923 to amend my tax report as my books show it necessary. Judge C. E. Claypool has been authorized to act for me in this matter due to my absence from the country. Trusting that this temporarily will*3882 be satisfactory. In compliance with petitioner's instructions, Judge Claypool prepared and duly filed an income-tax return on Form 1040-A, showing therein that it was a joint return of the petitioner and his wife Katherine. In reply to the question propounded in the return "Is this a joint return of husband and wife?" the answer was "Yes." That return showed net income from business for six and one-half months, $3,550, and income from certain rental property for twelve months, $1,710, or a total income of $5,260, from which sum certain detailed deductions were made amounting to $1,060, leaving a net income of $4,200. The return was signed by Judge Claypool as agent of the petitioner with the following notation: "Return made by agent because Dr. Torlief Torland now in Europe." The petitioner returned to the United States on or about September 1, 1923, after which he and his wife sought to file separate returns on the community property basis for the taxable year 1922. The respondent refused to determine the petitioner's tax liability on the basis of said amended return. OPINION. MORRIS: The return filed for the petitioner by his duly authorized agent was on its face a*3883 joint return filed pursuant to section 223 of the Revenue Act of 1921. The fact that the petitioner in his letter to the collector reserved the right later on to amend the report as his books showed it necessary does not, in our opinion, indicate that the agent exceeded his authority in preparing the return on that basis. Any taxpayer, whether he reserves the right or not, may file corrected figures upon the ascertainment that those already submitted are incorrect. If the return did not set forth all the taxable income of both husband and wife, that fact, when ascertained by the Commissioner or by either husband or wife, does not entitle either husband or wife to file another return on another basis. . A joint return as provided for in section 223 of the Revenue Act of 1921, having been filed, and the tax computed on that basis, the petitioner can not subsequently file a separate return on the community property basis. , and *3884 . Judgment will be entered for the respondent.