M. Brown & Co. v. Commissioner

M. BROWN & CO., PETITIONER, v. COMMISSIONER OF INTERNAL REVENUE, RESPONDENT. M. Brown & Co. v. Commissioner Docket No. 24864. United States Board of Tax Appeals 9 B.T.A. 753; 1927 BTA LEXIS 2522; December 21, 1927, Promulgated *2522 The deficiency claimed herein by the Commissioner is barred by the statute of limitation. A. E. James, Esq., for the petitioner. C. H. Curl, Esq., for the respondent. LITTLETON *753 The Commissioner determined a deficiency of $1,122.59 for the fiscal year ending June 30, 1921, as disclosed by the deficiency notice mailed January 2, 1927, as a result of the denial of the claim for the abatement of an assessment theretofore made under the provisions of section 274(d) of the Revenue Act of 1924. It is claimed that the Commissioner erred in decreasing earnings available for the payment of a dividend on September 29, 1920, in the amount of $5,100 through the computation of a tentative tax for the taxable year in the amount of $1,293.88 and that collection of the proper deficiency is barred by the statute of limitation of four years provided in the Revenue Act of 1921. Upon the second point the Commissioner claims that petitioner filed no return for the fiscal year ending June 30, 1921, under the provisions of the Revenue Act of 1921 and, therefore, collection of the tax may be made at any time. FINDINGS OF FACT. Petitioner is an Ohio corporation*2523 with principal office at Wapakoneta. On September 29, 1920, it declared and paid a dividend of $5,100. Its net income for the taxable year was $11,276.57. The Commissioner in computing the invested capital deducted from the net income the sum of $1,293.88 on account of tentative tax for the year and did not determine the amount of income available for the dividend of $5,100 on September 29, 1920, by prorating the entire net income to that date. Petitioner closed its books and made its return for income and profits-tax purposes on the basis of a fiscal year ending June 30, 1921. This fiscal year had theretofore been established as the regular basis for reporting income and had been accepted as such basis from and after the first reports made by petitioner under the provisions of the Revenue Act of 1918. On or before August 16, 1921, petitioner duly made and filed its income and profits-tax return for the year ended June 30, 1921, with the collector at Toledo, Ohio, and then and there paid to the collector the amount of the tax shown to be due upon this return, *754 amounting to $140.21. This return was a full and final return setting forth the items of income and deductions*2524 therefrom, and no further return has ever been filed by petitioner on account of its income for the taxable year. Thereafter, on December 30, 1924, the Commissioner mailed a 30-day letter to the petitioner wherein an additional tax liability in the amount of $287.16 was indicated, and on April 22, 1925, mailed to petitioner a 60-day letter relating to the taxable year indicating the same deficiency. The amount of that deficiency was assessed on the July, 1925, list. This additional tax has been paid and is not in question here. Thereafter, on October 17, 1925, the Commissioner mailed petitioner a notice under the provisions of section 274(d) of the Revenue Act of 1924 stating that "In accordance with the provisions of Section 274(d) of the Revenue Act of 1924, there has been assessed against you an income and excess profits tax amounting to $1,621.54 for the taxable years 1921 and 1923, the details of which are set forth in the attached statements." The additional tax assessed for the fiscal year June 30, 1921, was $1,122.59. This additional tax did not arise as a result of any change made by the Revenue Act of 1921 in the Revenue Act of 1918 and petitioner was not subject*2525 to any additional tax for the taxable year by reason of the enactment of the Revenue Act of 1921. The deficiency resulted entirely from the Commissioner's adjustment of the opening inventory, supplies and other expenses, and profit on the sale of land. The net income shown by the petitioner in its return was $3,402.05. The net income as adjusted by the Commissioner was $11,276.57. In pursuance of the letter of September 17, 1925, the Commissioner assessed a deficiency of $1,122.59 on the October, 1925, list based upon the adjustments above mentioned. Thereafter, on November 7, 1925, the collector served notice and demand upon petitioner. On November 15, 1925, petitioner filed with the collector a claim for abatement on account of the tax giving satisfactory security for the payment thereof. On January 2, 1927, the Commissioner transmitted to petitioner notice of his final determination on the abatement claim, in which notice he advised the petitioner that its claim was rejected and that there was a deficiency of $1,122.59 for the taxable year. On March 16, 1922, the Commissioner, with the approval of the Secretary of the Treasury, promulgated Treasury Decision 3305, relating*2526 to returns for fiscal years beginning in 1920 and ending in 1921. This Treasury decision, so far as material here, provided as follows: If any taxpayer has, before November 23, 1921, filed a return for a fiscal year ending in 1921, and paid or become liable for a tax computed under the Revenue *755 Act of 1918, and is subject to additional tax for the same period under the Revenue Act of 1921, the return covering such additional tax may be filed at the same time as the returns of persons making returns for the fiscal year ending February 28, 1922, * * *. On March 28, 1922, the Commissioner, with the approval of the Secretary of the Treasury, promulgated Treasury Decision 3310, amending Treasury Decision 3305 above quoted. The only change which was made by this amendment was as follows: * * * And is subject to additional tax for the same period under the Revenue Act of 1921, a return covering such additional tax shall be filed at the same time as the returns of persons making returns for the fiscal year ending February 28, 1922, * * *. (Italics ours.) OPINION. LITTLETON: Petitioner was not subject to any additional tax under the Revenue Act of 1921 for*2527 the fiscal year ending June 30, 1921, for which it duly filed a return prior to the approval of the Revenue Act of 1921. Under the law and the regulations, the petitioner was not required to file a second return. Fred T. Ley & Co.,9 B.T.A. 749. The return filed by petitioner satisfied the provisions of the Revenue Act of 1921. The Commissioner had four years from the date of the filing of this return within which to determine and assess any additional tax for the taxable year. This four-year period expired in August, 1925. The assessment was not made until October, 1925, and the Commissioner's final determination was not made until January 2, 1927. Collection of the deficiency is therefore barred by the statute of limitation. Reviewed by the Board. Judgment of no deficiency will be entered.