E. M. Pringle Naval Stores Co. v. Commissioner

E. M. PRINGLE NAVAL STORES COMPANY, INC., PETITIONER, v. COMMISSIONER OF INTERNAL REVENUE, RESPONDENT. E. M. Pringle Naval Stores Co. v. Commissioner Docket No. 32489. United States Board of Tax Appeals 23 B.T.A. 1328; 1931 BTA LEXIS 1727; August 27, 1931, Promulgated *1727 A waiver of the statute of limitations covering the calendar year 1921 and given by a taxpayer to his attorney, who holds a power of attorney authorizing him "generally to do, execute, and perform every act and thing whatever necessary or proper to be done with respect to the premises" for the year 1920 as well as for 1921, and who changes the waiver to cover the year 1920, and then gives it to the Commissioner, who accepts it, is a valid waiver extending the time within which an assessment of deficiency for 1920 may be made. Richard S. Doyle, Esq., for the petitioner. C. R. Marshall, Esq., for the respondent. SMITH *1328 This is a proceeding for the redetermination of deficiency in income tax for 1920 in the amount of $10,282.46. The only question in issue is whether the collection of the deficiency is barred by the statute of limitations. FINDINGS OF FACT. The petitioner is a Louisiana corporation with its principal office at Glenmora. Its income and profits-tax return for the calendar year 1920, showing a net loss of $3,787.28, was filed with the collector at New Orleans, La., on March 15, 1921. On February 1, 1926, the petitioner*1728 executed a waiver consenting to the assessment of any additional taxes for the years 1920 and 1921 up to and including December 31, 1926, and the waiver was filed with the Commissioner on February 20, 1926. On or about November 19, 1926, there was executed by E. M. Pringle, vice president of the petitioner, a waiver of: * * * the time prescribed by law for making any assessment of the amount of income, excess-profits, or war-profits taxes due under any return by or on behalf of said taxpayer for the year 1921 under existing revenue acts, or under prior revenue acts. *1329 The above document thus executed by Pringle was delivered to W. C. Flournoy, an accountant employed by the petitioner and engaged in taking up with the Government the petitioner's tax liabilities for the years 1920 to 1924, inclusive. Flournoy had a power of attorney from the petitioner, executed under date of March 26, 1926, authorizing him and others: * * * to appear before the Treasury Department of the United States, or any Bureau thereof, or any official or officials of said Department, in all matters pertaining to the determination, assessment, collection or payments of any Taxes which may*1729 be due by the said E. M. PRINGLE NAVAL STORES, INCORPORATED, to the United States, or pertaining to Claims for Abatements, Credit or Refunds, based on the assessment or payment of any amounts as such Taxes - to inspect any and all returns made by the corporation under the Revenue Acts of 1918, 1921, 1924, and 1926, respectively - to receive and receipt for in behalf of the corporation all checks and warrants made by the United States on account of any Refunds made or allowed - and generally to do, execute, and perform every act and thing whatever necessary or proper to be done with respect to the premises. In November, 1926, the records of the taxpayer were in the office of Flournoy. On or about November 19, 1926, revenue agents inspected the books of the petitioner at Flournoy's office; advised him that, inasmuch as the period within which assessment could be made for the year 1920 expired on December 31, an additional waiver extending the time for assessment to December 31, 1927, must be filed, otherwise they would have to recommend that the additional assessment for 1920 be made before December 31, 1926. Flournoy presented the waiver which had been executed by the petitioner*1730 by E. M. Pringle, vice president, for 1921. Flournoy was advised that there was no deficiency for 1921 and that the waiver which the Government was interested in was one for the year 1920. Flournoy took the waiver which he had for 1921 to New Orleans on the following day and presented it in conference with several revenue agents. He advised them that he had authority under his power of attorney to change the date on the waiver from 1921 to 1920. He accordingly did so and, at the request of the revenue agents, endorsed on the waiver the following: "Above change approved. E. M. Pringle by W. C. Flournoy, attorney." The waiver thus filed was accepted by the revenue agent in charge on behalf of the Commissioner and he, relying upon the validity of the waiver which had thus been filed by the petitioner, deferred the assessment of the deficiency beyond December 31, 1926. The petitioner corporation was in process of liquidation in November, 1926, and is not now operating, but the charter is still alive and the stockholders are the same as shown for 1924. During the month of September, 1927, the Commissioner made a jeopardy assessment against the petitioner in the amount of $10,282.46, *1731 plus interest of *1330 $962.61, representing additional income and profits taxes for the year 1920. A credit in the amount of $741.08 for an overpayment of the year 1920 was applied against the jeopardy assessment. The collector's records disclose the credit was listed on September 29, 1927. OPINION. SMITH: In this proceeding the respondent concedes that under sections 277 and 278(c) of the Revenue Act of 1928 the statute of limitations precludes the assessment of a deficiency unless the waiver dated November 19, 1926, is valid and effective, since the former waiver, which is not contested, expired by its terms on December 31, 1926, and the notice of deficiency was not issued until October 4, 1927. The petitioner contends that the waiver submitted by W. C. Flournoy dated November 19, 1926, was for the year 1921 and that the change in the year from 1921 to 1920 made by Flournoy was made without authority and that it is void and of no effect and that the statute of limitations expired prior to the issuance of the notice, namely, October 4, 1927. Upon the record Flournoy had the authority to execute a waiver of the statute of limitations for the year 1920. In reliance*1732 upon that authority he amended the form which had been executed by Pringle. An instrument is not vitiated by a change of its form after it is signed by one party and turned over to another for delivery under circumstances which import authority to perfect it for the purpose of rendering it available to the person to whom it is to be finally delivered. 2 Corpus Juris, P92. In , it was held that, where alteration of a date on a waiver for 1920 was made by a Government employee before being signed by the taxpayer, it was a valid waiver and extended the statutory period to the altered date. In , the Circuit Court of Appeals held in part as follows: The court below held as untenable the objection that the waivers were not properly executed by the plaintiff or by the Commissioner of Internal Revenue; that the signing of such a waiver, by one or more executive officers, with the corporate seal affixed, given as it was to secure further consideration of corporate tax liability, comes within the ordinary powers of corporate officers; * * * The objection that the waivers*1733 were without consideration cannot be sustained. The statute requires nothing but "consent," and it would be unconscionable to allow the taxpayer to afterwards repudiate a consent upon which the Commissioner has acted and relied. It appears that, in the circumstances, the execution of the waivers was a necessary incident to the securing of further consideration of the plaintiff's tax liability. We conclude that there was no error in sustaining the validity of the waivers. *1331 A case which is most nearly parallel to the instant proceeding is that of , in which the Circuit Court of Appeals in the course of its opinion stated: Beyond question an agent duly authorized to handle federal tax matters was authorized to execute waivers in furtherance of such business [compare and notice to it that Charles D. Jaffee had executed the waivers was shown when it appeared that, after he signed them, the waivers were sent to the tax agents who had the corporate seal and attached it to them. Under such circumstances, of course, *1734 notice to the agents was notice to the principal (; ; ); and the signing of these waivers by Jaffee was not only thus acquiesced in [see by the board of directors through its agents, but the agents actually participated in the execution of which his signing was a part. The waivers are as valid as though executed by the board of directors. We can not doubt that Flournoy had authority to represent the petitioner in all matters connected with the petitioner's tax liability for 1920; that, acting upon that authority, he furnished the waiver requested by the Government officers. The petitioner obtained the benefit which it sought by the execution of that waiver. We think it should not be heard to deny its validity. Judgment will be entered for the respondent.