Fleitmann v. Commissioner

FREDERICK T. FLEITMANN, PETITIONER, v. COMMISSIONER OF INTERNAL REVENUE, RESPONDENT. Fleitmann v. Commissioner Docket No. 28450. United States Board of Tax Appeals 22 B.T.A. 1223; 1931 BTA LEXIS 1983; April 20, 1931, Promulgated *1983 Waivers executed by petitioner, to which the Commissioner's name was affixed by employees in the Bureau of Internal Revenue or in the office of the Collector at the direction of persons authorized by the Commissioner to sign his name, are valid and extend the statutory period. Richard E. Dwight, Esq., F. S. Winston, Esq., W. N. Wood, Esq., and Howe P. Cochran, Esq., for the petitioner. Bruce A. Low, Esq., and L. H. Rushbrook, Esq., for the respondent. ARUNDELL *1223 The respondent determined a deficiency in income tax in the amount of $42,219.72 for the calendar year 1918. This deficiency represents the amount for which a claim for the abatement of an assessment of $42,702.50 was rejected. *1224 Upon motion of counsel for petitioner the hearing was limited in the first instance to the question of whether collection is barred by the statute of limitations. FINDINGS OF FACT. Petitioner's income tax return for the calendar year 1918 was filed on March 13, 1919. On February 7, 1924, respondent notified petitioner that he proposed to assess $42,702.50 additional tax for 1918. In the letter of notification respondent*1984 granted the petitioner thirty days to show cause why the proposed deficiency should not be paid, and asked for a waiver of the statute of limitations. On March 5, 1924, petitioner addressed a protest to the respondent to which was attached a waiver, dated February 18, 1924, extending the period for assessment and collection for a period of one year from the date of signing by the petitioner. This waiver does not bear the signature of respondent. On March 8, 1924, the proposed additional tax was assessed and on March 21, 1924, petitioner filed a claim for abatement of the entire assessment. In a statement attached to the claim it is stated that "an income and profits tax waiver was signed by the taxpayer and filed with the Commissioner of Internal Revenue." By letter of February 13, 1926, the respondent requested waivers for the years 1918 to 1921. On February 18, 1926, petitioner executed a waiver extending the time for assessment of 1918 taxes to December 31, 1926, and also providing for the additional time allowed by statute in case a notice of deficiency was sent by respondent. The respondent's name was signed to the waiver by the secretary to H. B. Robinson, at Robinson's*1985 direction. Robinson was head of the audit review division in the income tax unit and held a written authorization from Commissioner Blair dated January 26, 1926, to sign the latter's name to waivers. Previously, under date of December 18, 1925, a communication designated I.T.U. Order No. 83 had been addressed to heads of divisions and others directing that: Any waiver received from a taxpayer shall be referred to the Head of Division in which the case is under consideration, who will determine whether it is acceptable. On November 5, 1926, the respondent by letter directed to the petitioner asked for further waivers covering the years 1918 to 1921. The request was acknowledged by petitioner and with his acknowledgment he enclosed a waiver dated November 18, 1926, extending the time for assessment to December 31, 1927, and providing for the additional time allowed by statute in case a notice of deficiency was sent by the respondent. Commissioner Blair's name *1225 was signed to this waiver by Robinson's secretary at Robinson's direction. In a letter dated May 3, 1926, signed by petitioner and also in a letter dated November 2, 1926, signed by petitioner's attorney, *1986 the assessment made for 1918 was protested and a conference with respect to the assessment was requested. In letters dated December 16, 1927, November 5, 1928, and September 25, 1929, the collector for the third district of New York requested petitioner to execute waivers covering the assessment made for 1918. In response to the collector's requests, waivers were executed, dated December 15, 1927, October 17, 1928, and September 27, 1929, extending the time, respectively, to December 31, 1928, December 31, 1929, and December 31, 1930, for collection of the assessment made for 1918. Petitioner's name was affixed to the waiver of October 15, 1928, by his attorney in fact, who held a power of attorney. The name of the Commissioner was typewritten in these three waivers, and the collector's name was signed by a deputy collector at the direction of the Collector. On August 20, 1926, Acting Commissioner C. R. Nash addressed a communication, designated A & C Mimeograph, Coll. No. 3459, to collectors, relating to collection waivers and stating "authority is hereby delegated to collectors of internal revenue to sign such waivers in the name of the Commissioner * * *." The waivers referred*1987 to in that mimeograph are of the kind described in the preceding paragraph. In a letter to the collector for the third district of New York, dated December 21, 1929, the Commissioner stated in part: As Commissioner of Internal Revenue, I hereby affirm, ratify and adopt, as my own act and deed, all your prior actions in signing the name of the Commissioner of Internal Revenue to assessment and/or collection waivers under authority of A&C Mimeograph, Coll. No. 3606, R.A. No. 445, dated February 28, 1928, as amended by IT-Mimeograph, Coll. No. 3741, R.A. No. 510, dated June 1, 1929. Respondent allowed petitioner's abatement claim for $482.78 and rejected it for $42,219.72 and notified petitioner of his action by letter dated March 14, 1927. From this letter petitioner appealed to the Board. OPINION. ARUNDELL: Petitioner's return for 1918 was filed on March 13, 1919, and, unless the limitation period was waived, the time for assessment and collection expired five years later or on March 13, 1924. The assessment, a part of which the respondent is now attempting to collect, was timely, having been made on March 8, 1924. We have then, the precise question of whether collection*1988 is barred. *1226 The waivers filed by petitioner are as follows: Kind Date of waiver Period of extension Assessment and collection Feb. 18, 1924 To Feb. 18, 1925. Assessment Feb. 18, 1926 To Dec. 31, 1926. do Nov. 18, 1926 To Dec. 31, 1927. Collection Dec. 15, 1927 To Dec. 31, 1928. do Oct. 17, 1928 To Dec. 31, 1929. do Sept. 27, 1929 To Dec. 31, 1930. Whether the first of these waivers was invalid by reason of the lack of respondent's signature need not be decided, because the second waiver, dated February 18, 1926, was executed before the enactment of the Revenue Act of 1926 and hence it operated to extend the time under section 278(e) of that Act. Before the second waiver expired a third one, dated November 18, 1926, was executed which, if valid, extended the period beyond the date of the deficiency notice, March 14, 1927. Petitioner's argument that waivers of the period for assessment do not waive the period for collection has been disposed of by the decisions in ; and *1989 . The remaining contentions of the parties go to the validity of the waivers in view of the fact that they were not personally signed by the Commissioner of Internal Revenue. It is established that the Commissioner need not personally sign waivers in order to render them valid. ; ; affd., ; ; affirming on this point . We do not understand that petitioner seriously questions this proposition. The evidence establishes that H. B. Robinson, head of the Audit Review Division of the Income Tax Unit, and Charles W. Anderson, Collector for the Third District of New York, were authorized by the Commissioner to sign waivers. These officials delegated to subordinates the mechanical act of signing the Commissioner's name and petitioner challenges the validity of waivers thus signed, arguing (1) that the signing of a waiver is not a ministerial act, and (2) that, if it is, it is not the kind of*1990 a ministerial act that can be delegated. The evidence discloses that in each instance a waiver was requested by the respondent and it was pursuant to these requests that the waivers were signed and sent in by the petitioner. It has been pointed out in other cases that there is no requirement that a consent be evidenced by one piece of paper, and when the correspondence between the parties shows that they understood the statute to be extended there is a sufficient consent in writing. See ; . The Sabin decision holds that: The statute does not require that a consent, in order to be valid, must be in one instrument or that it shall be in any particular form. All that is required is that the consent be evidenced in writing. * * * The statute requires no more than that there shall be written evidence of the fact that both parties understand that the limitation period specified in the statute is not to govern the matter, and, therefore, that when a date to which the period has been extended is specified there shall be a complete understanding*1991 about it. If this view be correct the consents in writing were complete when the petitioners signed and filed the waiver forms. The nature of waivers has been discussed in several recent cases by the Supreme Court. In , it is pointed out that "a waiver is not a contract" but that it is essentially "a voluntary unilateral waiver of a defence by the taxpayer." And in , it is said that "the Commissioner's signature was required for purely administrative purposes." See also , and . These decisions do not hold, nor does the law require, that the Commissioner must personally affix his signature to waivers. Neither does the law require specific delegation by the Commissioner of authority to sign his name in order to validate waivers. The revenue acts from the earliest time have imposed a multitude of duties on the Commissioner, yet it has never been supposed that the law required the incumbent of the office to personally*1992 perform them. On the contrary, it is common knowledge that a large number of employees are engaged in carrying out the duties imposed by law on the Commissioner. The statute does not provide for these employees by name of by official designation - except in a few cases such as deputy commissioners and the general counsel, nor does it describe their duties, but the need for them is recognized by Congress in making appropriations for their salaries. Cf. , holding that if any authority from Congress was necessary to enable the Secretary of the Interior to appoint certain agents, "it may fairly be inferred from appropriations made to pay for the services of these special timber agents." See also , holding that: To attempt to regulate, by law, the minute movements of every part of the complicated machinery of government, would evince a most unpardonable ignorance on the subject. Whilst the great outlines of its movements may be marked out, there are numberless things which must be done, that can neither be anticipated nor defined, and which are essential to the*1993 proper action of the government. Hence, of necessity, usages have been established in every *1228 department of the government, which have become a kind of common law, and regulate the rights and duties of those who act within their respective limits. The evidence in this case establishes that it was the practice in both Robinson's and Anderson's offices for waivers to be brought to the attention of Robinson and Anderson and when they determined that the waivers should be signed, the physical act of signing was delegated to employees. While of course it is fundamental in the law of agency that an agent can not delegate his powers, there is abundant authority to the effect that ministerial acts may be delegated and that the affixing of a signature may be such an act. The duties of Robinson and Anderson under their authorizations had a double aspect in that they were both discretionary and ministerial. They were discretionary to the extent that it was necessary to determine whether the waivers were acceptable. Division heads had been specifically directed in I.T.U. Order No. 83 that that was a part of their duties. That duty, involving as it did the exercise of discretion, *1994 perhaps could not be delegated without specific authorization from the Commissioner. The evidence is not only that there was no attempt to delegate that duty, but that it was personally performed by Robinson and Anderson by having the waivers presented to them for decision as to acceptability. The ministerial part of Robinson's and Anderson's duties was the physical signing of the waivers. This was the only part that they delegated, and in our opinion it was a valid delegation. See ; ; ; ; ; ; . Accordingly, we hold valid the waivers executed by petitioner and to which the Commissioner's name was affixed by employees in his office and in the office of the collector under the circumstances disclosed by the evidence. Reviewed by the Board. The proceeding will be restored to the general calendar for hearing on the merits in due course. TRAMMELL TRAMMELL, dissenting: *1995 I agree that it is not necessary that both the taxpayer and the Commissioner sign the same instrument expressing their consent to an extension of time for assessment or collection. The consent of the Commissioner, in my opinion, can *1229 be given in a letter duly signed. However, there must be some written instrument signed by the Commissioner, or his duly authorized agent, accepting a waiver previously signed by the taxpayer. In the prevailing opinion no reliance is placed upon the first waiver, which was executed by the taxpayer, on February 18, 1924, but it is stated that, regardless of this waiver, the one executed by the taxpayer on February 18, 1926, and subsequent waivers, are sufficient. We must keep in mind that when facts have been disclosed which clearly show that the statute of limitations has run, the respondent has the burden of going forward to show that the period has been extended by proper waiver. In my opinion this is not done by a showing that a waiver was executed by the taxpayer on February 18, 1926. The evidence does not disclose that it was signed by any one authorized by the Commissioner to sign it prior to the passage of the 1926 Act, even conceding*1996 that the signature of the Commissioner placed thereon in the manner indicated was a proper signature. If it was not properly signed by the Commissioner or his representative prior to the passage of the 1926 Act, the assessment was clearly barred when the 1926 Act was passed, and under section 278(e) of that act the tax liability could not be revived by subsequent waivers and the case comes squarely within our decision in Corn Products Refining Co.,22 B.T.A. 605. The burden of proof was upon the Commissioner to show that the waiver was executed by both parties prior to the passage of the 1926 Act in order to sustain his position that the statute of limitations had not run. This he has failed to do. In my opinion, the signatures placed on the waivers by the secretary to Mr. Robinson at his direction were unauthorized. It may well be that if the Commissioner's signature were placed on the waiver by Robinson's secretary in his presence and at his direction, it might be considered his own act. The evidence, however, does not disclose that this was the case. I think it is clear that the statute contemplated that the Commissioner should sign waivers personally*1997 or that he should designate or authorize others to sign them for him, and that those so authorized by the Commissioner do not have authority to delegate that power to any one else. I think this is made clear from the language of the Supreme Court in the case of , where the Court, in referring to the necessity of the consent of the Commissioner in writing, said: If a reason must be found, it exists in the general desirability of the requirement as an administrative matter. It serves to keep the Commissioner in closer touch with the matters he is charged to administer. It avoids claims *1230 of improvident execution of waivers and unauthorized exactions by subordinates of the department * * * and it provides a formal procedure which is generally desirable * * *. In the Stange and Aiken cases, recently decided by the Supreme Court, it relied upon and quoted from the Florsheim case as above as authority for statements made in those cases with respect to the requirement of the Commissioner's signature. If subordinates in the Department, without authority from the Commissioner, *1998 approve waivers, the very purpose of the requirement of the statute would be overthrown. The Commissioner would not be kept in close touch with the matters he is charged to administer. Improvident execution of waivers by subordinates of the Department would not be obviated. I think, therefore, that the Commissioner's name placed on the waivers by Robinson's secretary was unauthorized and did not constitute the consent of the Commissioner in writing. I agree that the Commissioner's signature, placed on a waiver in the absence of any evidence with respect to authority of the person who put it there, might be presumed to be his authorized signature, but the evidence in this case is sufficient to overcome that presumption. I am inclined to think that the correspondence which appears to be relied upon to some extent to sustain the validity of the waivers and which passed prior to the execution of any waiver, is not shown to be sufficient in this case. The correspondence preceding the letters of December 16, 1927, November 5, 1928, and September 25, 1929, may, in so far as the record discloses, have been written by subordinates in the Department and the very purpose of the requirement*1999 of the consent in writing of the Commissioner and the taxpayer to the waiver is to avoid improvident execution of waivers and unauthorized exactions by subordinates and to keep the Commissioner in closer touch with matters he is charged to administer. The correspondence referred to does not disclose that the Commissioner, or any one duly authorized by him, would accept or approve the waivers when executed by the taxpayer. The respondent does not recognize the waivers received pursuant to the request for waivers as being complete when received, in view of subsequent action in having them executed by Robinson's secretary, a wholly unauthorized act. For the foregoing reasons, I find myself unable to concur in the majority opinion in this case.