Voltz v. Commissioner

KATHERINE L. VOLTZ, EXECUTRIX, ESTATE OF ALBERT L. VOLTZ, PETITIONER, v. COMMISSIONER OF INTERNAL REVENUE, RESPONDENT. Voltz v. Commissioner Docket No. 25604. United States Board of Tax Appeals 16 B.T.A. 167; 1929 BTA LEXIS 2630; April 24, 1929, Promulgated *2630 Harry T. Lore, Esq., for the petitioner. Arthur Carnduff, Esq., and Stanley Anderson, Esq., for the respondent. LANSDON *167 OPINION. LANSDON: On March 15, 1923, Katherine L. Voltz filed an individual income-tax return for the year 1922, which disclosed tax liability in the amount of $1,106.69. After audit of such return the Commissioner, on or about January 25, 1927, addressed a letter to Mr. Albert L. Voltz, Executor, Estate of Katherine L. Voltz, in which he asserted a deficiency in income tax against the estate of Katherine L. Voltz for the year 1922 in the amount of $497.23. It now appears that Katherine L. Voltz was living at the date of such letter and that, at the date of the hearing, she was still alive and that there is not now nor has there ever been any taxable entity described as the estate of Katherine L. Voltz or any executor thereof. Within 60 days from the date of the letter asserting a deficiency against the estate of Katherine L. Voltz, Katherine L. Voltz filed a petition with the Board of Tax Appeals, asking for a redetermination of a deficiency in the amount of $497.23, and signed and swore to such petitioner as Katherine*2631 L. Voltz, Executrix of the Estate of Albert L. Voltz, Deceased. Such petition was incomplete but was received and Docket No. 25604 assigned thereto. Subsequently an amended petition, similarly signed, was received and accepted by the Board and in due time the Commissioner filed his answer thereto. At the hearing Katherine L. Voltz, through her attorney, contended that the Board is without authority to hear this proceeding and redetermine the deficiency because (1) no income-tax return for 1922 has ever been filed for the estate of Albert L. Voltz, and (2) that no deficiency has ever been asserted against Katherine L. Voltz in respect of her individual tax return for the year 1922. The respondent admits that the return for 1922 was the individual tax return of Katherine L. Voltz, that such taxpayer is still living, and that no deficiency letter has ever been addressed to her as an individual. He contends, however, that the filing of the petition by Katherine L. Voltz, Executrix of the Estate of Albert L. Voltz, Deceased, praying for a redetermination of the deficiency asserted as above set forth, cures all the errors, omissions and irregularities of the record and constitutes*2632 an acceptance of liability for the tax asserted in the deficiency notice. *168 We are unable to adopt the view of the respondent. The return purports to be an individual tax return. The notice of deficiency was addressed to a nonexistent person, the executor of an estate that had no existence, and the appeal was filed by the executrix of an estate that had made no return of income for the taxable year and against which the Commissioner has determined no deficiency. In our opinion it is impossible to clear this record by substitution of parties, even by agreement of counsel. In fact, however, there is no such agreement and counsel for the petitioner insists that in the circumstances no taxpayer is before the Board. We are of the opinion that the Board is without jurisdiction to redetermine any deficiency in this proceeding and an order in accordance with this conclusion will be entered. Reviewed by the Board.