Enameled Metals Co. v. Commissioner

ENAMELED METALS COMPANY, PETITIONER, v. COMMISSIONER OF INTERNAL REVENUE, RESPONDENT. Enameled Metals Co. v. Commissioner Docket No. 19011. United States Board of Tax Appeals 25 B.T.A. 186; 1932 BTA LEXIS 1566; January 14, 1932, Promulgated *1566 S. Leo Ruslander, Esq., for the petitioner. P. S. Crewe, Esq., for the respondent. GOODRICH *186 The Commissioner determined a deficiency in income and profits taxes for the year 1918 in the amount of $66,920.09, which was *187 asserted as a jeopardy assessment. Against this assessment petitioner filed a claim in abatement, without bond, which was allowed in the amount of $34,516.66, and denied in the amount of $32,406.43. Petitioner then appealed to the Board for a redetermination of its tax liability making a claim for special assessment. The hearing was limited to that issue under (a) and (b) of Rule 62 of the Board's rules of practice. The Board denied the contention of the petitioner and decision was entered for the respondent (14 B.T.A. 1392). Thereafter petitioner asked leave to file an amended petition raising the issue of the bar of the statute of limitations. This motion was denied. Upon petition to review, the United States Circuit Court of Appeals for the Third Circuit refused to review the decision of the Board upon the question of abnormality, but vacated the order of the Board denying the motion to amend the*1567 petition, and returned the record with the direction to hear and decide petitioner's defense of the statute of limitations (42 Fed.(2d) 213). The decision of the Board with respect to the issue of special assessment was affirmed, upon certiorari, by the Supreme Court of the United States. The petitioner's defense of the bar of the statute of limitations is, therefore, the only issue presented in the instant proceeding. FINDINGS OF FACT. Petitioner filed its tax return for the year 1918 on June 16, 1919. On his assessment list for March, 1924, the Commissioner of Internal Revenue entered a jeopardy assessment against petitioner in the amount of $66,920.09 for additional taxes for 1918. This assessment was made as a jeopardy assessment because of respondent's failure to comply with section 250(d) of the Revenue Act of 1921. On March 31, 1924, petitioner filed in the office of the local collector of internal revenue a claim in abatement covering the additional tax assessed; this claim is by reference included herein. No bond was filed by petitioner at that time, nor at any other time in respect to the tax here at issue. No waivers were filed by petitioner prior*1568 to September 12, 1927, when the following waiver was filed: IT:No. 1079. TAX COLLECTION WAIVER. 47 Filed September 12th, 1927. It is hereby agreed by and between Enameled Metals Co. of 61 Bridge St., Etna, Pa., party of the first part, and the Commissioner of Internal Revenue, party of the second part, that the amount of $66,828.47, representing an assessment of income tax for the year 1918 made against the said party of the first part, appearing on the March Addl. 16 Spl. 9-1924 List, for the 23rd District of Penna. may be collected (together with such interest, penalties, or other *188 additions as are provided for by law) from said party of the first part by distraint or by a proceeding in court begun at any time prior to Dec. 31st., 1928. See Rider attached. (Signed) ENAMELED METALS CO. By S. L. R. By D. H. BLAIR C. A. D. Commissioner of Internal Revenue. (SEAL) By D. B. HEINER Collector of Internal Revenue. - B 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*1569 in addition to which, THE SEAL, if any, of the corporation must be affixed. RIDER FILED AS A PART OF THE TAX COLLECTION WAIVER FOR 1918 FILED BY THE ENAMELED METALS COMPANY, 61 BRIDGE STREET, ETNA, PENNSYLVANIA Taxpayer has pending and undisposed of before the Board of Tax Appeals at Docket No. 19011 an appeal wherein, among other issues raised, taxpayer intends to raise the question as to the right of the Commissioner of Internal Revenue to collect further income and profits taxes for the year 1918, for the reason that the proposed collection of additional taxes is now barred by the statute of limitations applicable thereto. This waiver is filed with the distinct reservation of rights by the taxpayer and understanding that this waiver shall not affect taxpayer's right to establish the bar of the statute of limitations above set forth, and to have the full benefit thereof, so far as the same existed up to and including the 12th day of September, 1927. This waiver is limited to the protection of the said Collector of Internal Revenue against any rights with respect to the collection of additional taxes for the year 1918 that might accrue to said taxpayer by reason of failure*1570 to immediately distrain for said taxes, for the period from September 12, 1927, to the date of the expiration of this waiver. (Signed) ENAMELED METALS COMPANY JOHN S. PATTERSON President. (SEAL) Similar waivers with the same reservations were filed by petitioner September 12, 1928, and on September 9, 1929. These waivers expired December 31, 1929, and December 31, 1930, respectively. No further waivers were executed until September 15, 1931, when the following waiver was filed: TAX COLLECTION WAIVER. September 15, 1931. It is hereby agreed by and between Enameled Metals Company of 61 Bridge St., Etna, Penna., party of the first part, and the Commissioner of Internal Revenue, party of the second part, that the amount of $66,828.47, representing an assessment of income tax for the year 1918 made against the said party of the first part, appearing on the March, 1924 assessment list, March 16 - Spl 09, for the district of 23rd. Penna., may be collected (together with such interest, *189 penalties, or other additions as are provided for by law) from said party of the first part by distraint or by a proceeding in court begun at any time prior to December 31, 1932. *1571 See Rider attached. (Signed) ENAMELED METALS CO., By L. R. QUINN, Vice Pres. DAVID BURNET, Commissioner of Internal Revenue. By D. B. HEINER, Collector of Internal Revenue. W.J.B. 9/17/31. (SEAL) 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. RIDER ATTACHED TO AND FORMING PART OF TAX COLLECTION WAIVER FOR 1918 FILED BY ENAMELED METALS COMPANY. 61 Bridge St., Etna, Pennsylvania. Taxpayer has pending and undisposed of before the Board of Tax Appeals at Docket No. 19011 an appeal wherein taxpayer has raised the issue as to the right of the Commissioner of Internal Revenue or the Collector of Internal Revenue for the Pittsburgh District to collect any further income and profits taxes for the year 1918 from taxpayer, for the reason that the proposed collection of additional taxes is barred by the statute of limitations applicable thereto. This waiver is filed with the distinct reservation*1572 of rights by the taxpayer and understanding that this waiver shall not affect taxpayer's right to establish the bar of the statute of limitations above set forth, and to have the full benefit thereof, so far as the same existed, or can exist, up to and including the date of the execution of this waiver. This waiver is limited to the protection of the said Collector of Internal Revenue against any rights with respect to the collection of additional taxes for the year 1918 that might accrue to said taxpayer by reason of failure to immediately distrain for said taxes, for the period from the date of this waiver, viz., September 15, 1931, to the date of the expiration of this waiver, viz., December 31, 1932. (Signed) ENAMELED METALS COMPANY, By L. R. QUINN, Vice President. (ATTACH SEAL.) In the deficiency notice of June 2, 1926, the claim in abatement was allowed in the sum of $34,513.66 and rejected in the sum of $32,406.42, which amount was asserted as a deficiency. On July 30, 1926, petitioner appealed to the Board. The findings of fact in the former proceeding before this *1573 Board, (14 B.T.A. 1392) are included herein by reference. No part of the deficiency here involved has been paid. No suit or other proceeding for the collection thereof has been instituted. *190 OPINION. GOODRICH: Respondent concedes, and rightly so, that the collection of the tax here claimed is barred by the expiration of the statute of limitations, unless the statutory period has been extended by the waivers filed by petitioner. Under section 250(d) of the Revenue Act of 1921, respondent had five years from the date of filing of the 1918 return, or until June 16, 1924, within which to determine, assess and collect this tax. He failed to make collection, or to institute suit or other proceeding for such collection, within that time, and, therefore, the collection was thereafter barred. The statutory period was continued by section 277(a)(2), as enlarged by section 278 of the 1924 Act which, however, did not extend to cases where, as here, the assessment had been made prior to the effective date of the act - June 2, 1924. *1574 Russell v. United States,278 U.S. 181; William H. Schroll,20 B.T.A. 1027; E. J. Lorie,21 B.T.A. 612. See also section 1009(d), Revenue Act of 1924. Nor do the Revenue Acts of 1926 and 1928 extend the time within which collection may be made where the assessment was made prior to the effective date of the 1924 Act. No suit or other proceeding for collection had been instituted, and collection was barred prior to the effective date of the 1926 Act. It is clear, therefore, that collection of the tax was barred on June 16, 1924, when the five-year statutory period expired; on June 2, 1926, when respondent issued his deficiency notice; on July 30, 1926, when petitioner filed its appeal therefrom to this Board; and on September 12, 1927, when the first waiver was filed. But respondent contends that this waiver, and those subsequently given, revived the period for collection. With this we do not agree. The waivers must be read with their riders, filed with and as a part of them. Therein the taxpayer expressly reserved his rights with respect to the bar of the statute of limitations, and gave to the collector protection only*1575 against loss of his rights resulting from his forbearance to distrain for the taxes during the effective period of the waivers. During such periods, the collector had no legal right to distrain, because collection was outlawed long since. As we read them, these waivers effected no revival of the statutory period. Respondent argues, further, that he should be permitted to make collection now for the reason that, had he made collection previously, whether by distraint or otherwise, whether legally or illegally, petitioner could not recover because of the provisions of section 611 of the Revenue Act of 1928, relating to payments made after the expiration of the statute of limitations. We see no reason for entering the realm of conjecture or resorting to an hypothesis to reach a decision *191 in this case. The fact remains that the tax has not been paid. It further appears that the period within which the tax may be collected lawfully has expired. Therefore, there will be entered a Judgment of no deficiency.