Buzard v. Commissioner

R. T. BUZARD, PETITIONER, v. COMMISSIONER OF INTERNAL REVENUE, RESPONDENT. E. T. DUSENBURY, PETITIONER, v. COMMISSIONER OF INTERNAL REVENUE, RESPONDENT. Buzard v. Commissioner Docket Nos. 42793, 43017. United States Board of Tax Appeals 28 B.T.A. 247; 1933 BTA LEXIS 1165; May 31, 1933, Promulgated *1165 Held that assessment of the transferee liability of the petitioners for unpaid income and excess profits taxes of the Navarro Lumber Co. for 1919 and 1920 is not barred by the statute of limitations. James P. Quigley, Esq., for the petitioners. J. R. Johnson, Esq., and L. M. Berrien, Esq., for the respondent. SEAWELL *248 These proceedings were consolidated for hearing and report and involve the redetermination of liabilities of the petitioners as transferees for unpaid income and excess profits taxes of the Navarro Lumber Co. for 1919 and 1920 in the respective amounts of $13,568.75 and $39,517.43. The issue is whether or not assessment of the taxes against the petitioners is barred by the statute of limitations. FINDINGS OF FACT. The Navarro Lumber Co. filed its income tax returns for 1919 and 1920 on March 15, 1920, and March 8, 1921, respectively. On June 9, 1922, the Navarro Lumber Co. made application for voluntary dissolution. On July 15, 1922, the court entered a decree dissolving the corporation and directing that its directors, consisting of the petitioners and A. M. Larkin, forthwith distribute the assets of the*1166 corporation to its stockholders. In November 1923 the petitioners and A. M. Larkin, acting in their capacity of trustees of the Navarro Lumber Co., gave John J. Heberle a power of attorney reading as follows: KNOW ALL MEN BY THESE PRESENTS: That the Trustees of the NAVARRO LUMBER COMPANY, a Corporation organized under the Laws of the State of California, with principal office and place of business in San Francisco, California, but whose corporate charter has now been abandoned, have appointed and constituted and by these presents do hereby appoint and constitute JOHN J. HEBERLE, of 45 Cedar Street, New York City, their true and lawful attorney for and in their place and stead, to appear before the Bureau of Internal Revenue of the Treasury Department, and to take any step or proceeding and to do and perform any act or thing required or permitted to be done by the Treasury Department in relation to the Returns and Claims of the NAVARRO LUMBER COMPANY, concerning Income Tax for all past years ended prior to date of this instrument. Thereafter all correspondence received by the Navarro Lumber Co. at its former place of business in San Francisco concerning tax matters was referred*1167 to John J. Heberle without restrictions as to the action to be taken by him. In 1923 a return was filed in the name of the Navarro Lumber Co. for 1922. It was signed "For Navarro Lumber Company (Dissolved) By John J. Heberle For Committee of Trustees in Liquidation." By the provisions of a waiver dated December 29, 1924, the period for assessment and collection of income, excess profits and war profits taxes due from the Navarro Lumber Co. for 1914 to 1919, inclusive, was extended to December 29, 1925. The instrument was signed in the name of the corporation by each of the three trustees. The waiver was forwarded to the respondent accompanied by a letter of *249 John J. Heberle in which he stated that the "affairs of this corporation are being administered by three of its Directors, acting as 'Trustees' by order of Court." On February 10, 1925, the respondent mailed a notice to the "Navarro Lumber Company, 507 Crocker Building, San Francisco, California," advising it of deficiencies in taxes for 1919 and 1920. The addressee delivered the letter to John J. Heberle. On April 11, 1925, a petition was filed with the Board from said letter. The petition was styled "Appeal*1168 of Navarro Lumber Company, 507 Crocker Building, San Francisco, California." In the jurisdictional allegations of the petition the statements appear that the "Taxpayer is a California Corporation" and that "The deficiency letter was mailed to the taxpayer on (dated) February 10, 1925." The petition was signed "For Navarro Lumber Company, By John J. Heberle," attorney for the trustees authorized by court order to liquidate the affairs of the corporation. In his verification of the petition, John J. Heberle stated that he was "duly authorized to sign and present this petition and appeal * * *." The petitioner was also signed by Abram R. Serven as "Of attorneys for Taxpayer" and was transmitted to the Board by a letter signed by Abram R. Serven in which he stated, among other things, that "Mr. Heberle has held this appeal until the last day of the 60 days granted for taking same in the hope that he would be able to secure the verification of the appeal by one of the said directors, but has been unable to do so." The letter also contains a statement that Serven had been "retained in association with Mr. Heberle in this matter and as he is not admitted to practice before your Board, I*1169 have signed this appeal as attorney for the corporation * * *." These statements were followed by a request that the petition be accepted with the privilege of substituting verifications by the "former directors of the corporation." A corrected petition was filed with the Board on April 25, 1925. This was styled in the same manner as the original petition and states that "the above-named Taxpayer hereby appeals from the determination of the Commissioner of Internal Revenue set forth in his deficiency letter * * * dated February 10, 1925 * * *." This is followed by a statement that the petition was "To verify and confirm the above-cited PETITION, which was duly filed on April 11, 1925, as an appeal from Bureau 'Deficiency' letter * * * dated February 10, 1925." The instrument then states that the signers were, by court order, authorized to represent the Navarro Lumber Co.; that the petition filed on April 11, 1925, was verified by John J. Heberle and signed and filed by Abram R. Serven, "by *250 our direction"; and that "we desire to and do confirm all of said acts of our said attorneys, and we verify and adopt as our own act and deed, the said petition filed with the U.S.*1170 Board of Tax Appeals, on April 11, 1925", which, by reference, was made a part of the instrument. The corrected petition was signed "For the Navarro Lumber Company" by the petitioners and A. M. Larkin, as trustees. The verification of each of the trustees reads as follows: , being duly sworn, deposes and says that he is one of the Trustees of the NAVARRO LUMBER COMPANY, now in process of liquidation; that he executed the foregoing instrument in the name and on behalf of said corporation, and that he was authorized to sign his name thereto and to execute the same by order of Court herewith; and moreover, that he has read the annexed petition, and all of the papers mentioned herein and made a part hereof; and is familiar with the statements therein contained, and that the facts therein stated are true, except such facts as are stated to be upon information and belief, and those facts he believes to be true. The Board's report of the hearing had under the proceeding was promulgated February 13, 1928 (), and its order or redetermination was entered on February 27, 1928. The petition, answer, findings of fact and order of redetermination*1171 in that proceeding are incorporated herein by reference. The letters forming the basis of these proceedings were mailed to the petitioners on January 17, 1929. It is stipulated (1) that there are deficiencies of $13,568.75 and $17,630.97 in income and excess profits taxes of the Navarro Lumber Co. for 1919 and 1920, respectively; (2) that on August 7, 1922, the petitioners received certain distributions in liquidation of said corporation; and (3) that in the event assessment is not barred by the statute of limitations, the liability of the petitioners as transferees under the provisions of section 280 of the Revenue Act of 1926 is $26,947.70 in the case of petitioner Dusenbury and $31,199.72 in the case of petitioner Buzard. OPINION. SEAWELL: The petitioners admit that if the case of , involving the taxpayer's liability for the taxes, was properly before the Board, assessment of the taxes is not barred. The issue thus turns upon whether or not that proceeding was an appeal of petitioners' transferor within the meaning of section 277(b) of the Revenue Act of 1924. The issue involves our assumption of jurisdiction in the*1172 taxpayer's case. The substance of the argument of the petitioners is that the proceeding relied upon by the respondent to extend the five-year limitation period was not instituted by the taxpayer because from the *251 time of its dissolution in 1922 there was no one to represent or act for it. They rely on numerous cases to support their contention. We have been called upon to decide a number of cases instituted to redetermine deficiencies asserted against dissolved corporations. In some our jurisdiction was challenged and in others we decided the question on our own motion. Our decisions generally turned upon the status of the corporation in dissolution, as defined by the laws of the state of incorporation, due to the well established rule that in the absence of statutory authority a corporation has no existence after its dissolution. . The Navarro Lumber Co. had its existence under the laws of California. Section 400 of the Civil Code of that State reads, in part, as follows: Unless other persons are appointed by the court, the directors or managers of the affairs of a corporation at the*1173 time of its dissolution are trustees of the creditors and stockholders or members of the corporation dissolved, and have full powers to settle the affairs of the corporation, collect and pay outstanding debts, sell the assets thereof in such manner as the court shall direct, and distribute the proceeds of such sales and all other assets to the stockholders. Such trustees shall have authority to sue for and recover the debts and property of the corporation, and shall be jointly and severally personally liable to its creditors and stockholders or members, to the extent of its property and effects that shall come into their hands. Under these provisions of the state statute, in the absence of the appointment of others by the court, the directors of the transferor at the time of its dissolution became trustees of the corporation's creditors and stockholders with powers prescribed by the statute to liquidate the affairs of the corporation. Their powers were not limited as to time and included the right to settle claims for additional Federal taxes. *1174 ; affirming ; ; ; ; ; ; ; . The designation of the corporation in the deficiency notice as the taxpayer, instead of its liquidating trustees, has been held not to be important. See ; certiorari denied, . The trustees received actual or constructive notice of the deficiency notice, and being bound by law to take notice of it (), sought a redetermination of the taxes alleged to be due from the dissolved corporation by instructing their attorney *252 to file an appeal with this Board. The petition filed with the Board*1175 was an affirmative action () and the proceeding was instituted by the only persons authorized by the state law to settle the affairs of the dissolved corporation. ; . The proceeding was "For the Navarro Lumber Co." by its duly authorized trustees in liquidation and in substance was an appeal by the taxpayer as the term is used in section 277(b) of the 1924 Act. A motion to dismiss the original petition for want of jurisdiction because it was not properly verified would have been denied. . Whatever defects there might have been in the original petition were cured by the amended petition filed two weeks later. We think the case of , was an appeal by the transferor of the petitioners and served to extend the period of limitation for assessment against the taxpayer. Our decision should be for the respondent for another reason. The petitioners, with the other trustee, invoked the jurisdiction of the Board in the case of the taxpayer*1176 and did not contest it at any time during the course of the proceeding. The petitioners are not now in a position to deny that we had jurisdiction. ; ; . The liability of the petitioners as transferees for unpaid taxes of the Navarro Lumber Co. for 1919 and 1920 is not barred by the statute of limitations. Dicision will be entered for the respondent.