Alliance Machine Co. v. Commissioner

ALLIANCE MACHINE CO., PETITIONER, v. COMMISSIONER OF INTERNAL REVENUE, RESPONDENT. Alliance Machine Co. v. Commissioner Docket No. 12506. United States Board of Tax Appeals 12 B.T.A. 1156; 1928 BTA LEXIS 3395; July 5, 1928, Promulgated *3395 1. Under the evidence, held that assessment and collection of the additional tax involved herein are not barred by the statute of limitations. 2. Invested capital of a corporation may not be reduced, in determining the extent to which a dividend is paid from current earnings of a year, by a "tentative tax" theoretically set aside out of such earnings pro rata over such years. Jesse I. Miller, Esq., for the petitioner. Shelby S. Faulkner, Esq., for the respondent. MARQUETTE *1157 This proceeding is for the redetermination of a deficiency in income and profits taxes asserted by the respondent for the year 1919 in the amount of $6,362.05. The deficiency arises from a reduction by the respondent of the amount of invested capital claimed by the petitioner. FINDINGS OF FACT. The petitioner is and was during the year 1919 an Ohio corporation with its principal office at Alliance, Ohio. During the year 1919 the petitioner's books of account were kept, and its return of income for that year was made, on the accrual basis. On March 15, 1920, it filed an income and profits-tax return for the year 1919. On December 2, 1924, the petitioner*3396 and the Commissioner entered into a written agreement as follows: DECEMBER 2, 1924. INCOME AND PROFITS TAX WAIVER In pursuance of the provisions of existing Internal Revenue Laws, Alliance Machine Company, a taxpayer, of Alliance, 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 already on file with*3397 the Bureau. [Corporate seal affixed.] (Signed) THE ALLIANCE MACHINE COMPANY, Taxpayer. By W. H. PURCELL, President. D. H. BLAIR, Commissioner. If this waiver is executed on behalf of a corporation, it must be signed by such officer or officers of the corporation as are empowered under the laws of the State in which the corporation is located to sign for the corporation, in addition to which, the seal, if any, of the corporation, must be affixed. On February 18, 1926, the respondent mailed a deficiency letter to the petitioner, which was duly received, and which set forth a deficiency in taxes for the year 1919 amounting to $6,362.05. In determining this deficiency, the respondent computed a tentative tax for *1158 the year 1919 and adjusted the earned surplus in an amount by which certain dividends, plus a proportion of the tentative tax, exceeded current earnings on various dates during the year 1919. This computation and adjustment resulted in reducing the amount of the petitioner's invested capital $40,935.59. OPINION. MARQUETTE: The petitioner claims that: (1) Assessment and collection of the deficiency asserted herein are barred by*3398 the statute of limitations, and (2) that the respondent erred in computing a tentative tax for 1919 and adjusting earned surplus accordingly. Both of the petitioner's claims are denied by the respondent. The petitioner invokes the aid of section 277(a)(3) of the Revenue Act of 1926, which is as follows: SEC. 277. (a) Except as provided in section 278 - * * * (3) The amount of income, excess-profits, and war-profits taxes imposed by 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, the Act entitled "An Act to reduce tariff duties and to provide revenue for the Government, and for other purposes," approved October 3, 1913, the Revenue Act of 1916, the Revenue Act of 1917, the Revenue Act of 1918, and by any such Act as amended, shall be assessed within five years after the return was filed, and no proceeding in court without assessment for the collection of such taxes shall be begun after the expiration of such period. The section of law just quoted is subject to certain exceptions, set forth in section 278 of the Act. Paragraph (c) of that section reads: *3399 (c) 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. A written consent signed by both the petitioner and the respondent was executed December 2, 1924, some three and one-half months before the statute of limitations would have run, and it extended the period for assessment until March 15, 1926. The deficiency letter herein was mailed to the petitioner on February 18, 1926, and the petition was filed on March 15, 1926. Since the deficiency letter was mailed to the petitioner before the expiration of the period for assessment as extended by the written consent, the period within which assessment may be made is further extended by section 277(b) of the Revenue Act of 1924 and section 277(b) of the Revenue Act of 1926. It follows that the assessment and collection of the deficiency are not barred by the statute of limitations. The second question challenges the propriety of the respondent's method of determining the alleged deficiency. The same question *1159 was before this*3400 Board in , and All On the authority of those decisions the Commissioner is reversed on this point. The tax should be recomputed in accordance with this opinion. Judgment will be entered under Rule 50.