Commissioner of Internal Revenue v. Bryson

GARRECHT, Circuit Judge. Brought to this court on petition for review of a final decision and order of redetermiriation of the United States Board of Tax Appeals, this ■ proceeding involves alleged deficiencies in income and profits taxes for the years 1917 and 1918, amounting to $2,863.42 and $5,741.89, respectively. The Board found that the alleged taxpayer, the respondent herein, was not liable for any deficiency of the Bryson-Robison Corporation for 1917 and 1918, but that he was liable as transferee of the assets of the corporation for its deficiency for 1919, in the amount of $2,273.-54, with interest. The Commissioner has filed a petition for review of the Board’s decision, as to the years 1917 and 1918. The respondent filed a petition attacking that portion of the Board’s decision which found him liable for the deficiency for the year 1919. No brief has been filed or personal appearance made in this court in behalf of the respondent, and we assume that his petition “for cross-appeal” and review has been abandoned. Prior to entering its final decision and order of redetermination, the Board at different stages of the present controversy filed an “opinion,” a “memorandum opinion and order,” a “memorandum opinion,” and an “order.” Only the first of these has been reported. 22 B. T. A. 395. As found by the Board, the facts are substantially as follows: In 1916 the Bryson-Robison Corporation was organized under the laws of the state of Washington. Its stock was divided equally between the respondent and Lester L.’ Robison. . Robison was president of the corporation and the respondent was secretary and treasurer. No formal corporate meetings were held and no regular set of books or accounts was kept. The corporation engaged in business until June 4, 1919, when the respondent purchased Robison’s stock and interest for $70,000, took possession of the corporation’s entire assets, and operated the business thereafter as an individual. On May 14, 1930, the Secretary of State of the State of Washington promulgated the following certificate: “I, J. Grant Plinkle, Secretary of State of the State of Washington, and custodian of the Seal of said State, do hereby certify that I have carefully examined the records of this office and find that the ‘Bryson-Robison Corporation’, a domestic corporation of Walla Walla, Washington, filed a copy of its articles of incorporation in this office on the 13th day of October, 1916. “I further certify that the above mentioned corporation was stricken from the records of this office July 1, 1921, and' was further ‘Stricken from the Records and dissolved’ July 1, 1924, under the. provisions of Chapter 144, Laws of Washington of 1923, for failure to pay the annual license fees and accruing penalties, the last license fee paid being for the fiscal year ending June 30, 1919. “And I further certify that the above mentioned corporation has had no legal-existence since stricken July 1, 1921, pursuant to Chapter 140, laws of 1907.” The corporation, filed its income tax return for 1917 on March 30, 1918, and' its return for 1918 on June 16, 1919. On February 12, 1923, the respondent executed a purported waiver agreeing to-an extension of time to one year after date for the assessment of 1917 income-taxes against the corporation. On January 2, 1924, he executed what purported tó be an unlimited waiver in respect of 1917 and 1918 income taxes-of the corporation. The text of that waiver was as follows : “In pursuance of the provisions of subdivision (d) of Section 250 of the Revenue Act of 1921, Bryson-Robison Corp.,. of Walla Walla, Washington, and the-Commissioner of Internal Revenue, here- • by consent to a determination, assessment and collection of the amount of income, excess-profits, or war-profits taxes due un [399] der any return made by or on behalf of the said Corporation for the years 1917 and 1918 under the Revenue Act of 1921, or under prior income, excess-profits, or war-profits tax Acts, or under Section 38 of the Act entitled ‘An Act to provide revenue, equalize duties, and encourage the industries of the United States, and for other purposes’, approved August 5, 1909, irrespective of any period of limitations. “[Signed] Elmer D. Bryson, “Former Secretary of the Bryson-Robison Corp. “Taxpayer, “[Signed] D. H. Blair, c. “Commissioner.” Accompanying the waiver of January 2, 1924, was a letter addressed to the Commissioner, signed by the present respondent’s attorney. The text of that letter follows : “Elmer D. Bryson has handed me your office letter of the 19th inst. addressed to Bryson-Robison Corporation, in his care, advising that it will be necessary for this corporation within twenty days from the date of your letter to advise you of its acquiescence in the determination of net income and invested capital as found by the Revenue Agent’s report dated October 22, 1923, in order that you may furiher consider an application for computation of tax under the provisions of Section 210, Revenue Act 1917 and Sections 327-8, Revenue Act 1918. “You have already been informed that this corporation has been entirely out of business since July, 1919, and since that date has not owned or possessed any property of any character and the corporation has long since been stricken from 'the corporate rolls of this state, where it was incorporated. It has not functioned in any manner since that date, and being stricken from the corporate rolls naturally the former officers of the corporation cannot legally presume to act for it since it no longer exists. “During the life of the corporation Elmer D. Bryson was secretary of the corporation, but will not presume to assume [sic] to act in that capacity after all of these years since its dissolution. The only w ay he could make a report would be that as that [sic] of an individual, who was formerly secretary of a corporation which has been defunct for ■a period of over four and one half years, and during which period it has neither functioned nor owned any property. * * “Your office letter above referred to is being by him referred to Cosper Accounting Company, who has been looking after this matter and it will probably give your letter such further attention and reply as it deems proper and necessary. We deemed it proper that this status be called to your attention, as no former officer will assume any authority not vested in him. “Yours very truly, “Herbert C. Bryson.” Deficiencies were assessed against the taxpayer corporation on March 21, 1924, for 1917, and on September 1, 1925, for 1918. The sixty-day letters to the respondent herein and to Robison as transferees were mailed November 3, 1926. The net value of the assets transferred to Bryson exceeded the amount of the deficiencies. The Board held that the waivers were not sufficient to extend the periods of assessment and collection of the 1917 and 1918 taxes against the transferor corporation, and that, since such assessment and collection were barred prior to the passage of the Revenue Act of 1926 (44 Stat. 9), assessment and collection of the liability of the respondent herein, as transferee, were also barred. The Commissioner concedes that without any waiver, the statute of limitations would have run against the 1917 taxes-on March 30, 1923, and against 1918 taxes on June 16, 1924, in each case five years after the filing of the respective return. As the Commissioner points out, since it is seltled that a waiver is effective when executed after the running of the statute, it is necessary to consider only whether the waiver of January 2, 1924, was sufficient to extend the periods for assessment against the corporation for 1917 and 1918 taxes, so as to make timely the assessments of March, 1924, and September, 1925. The Commissioner’s argument is threefold: First, that the waiver was clearly sufficient to extend the periods of assessment against the corporation; second, that if the waiver could not bind the corporation, it at least bound the respondent herein, individually; and, third, that in any event, “apart from technical considerations,” “in view of the fact that the [400] extensions of time for assessment were necessitated by the respondent’s claim for special assessment,” etc., the respondent is estopped from denying the validity of the waivers. Under the first proposition, it first becomes necessary to inquire whether the corporation was in existence at the time when the waiver of January 2, 1924, was executed. If the corporation was a legal entity at that time, it next must be determined whether the waiver was sufficient to bind the company. There is no need to labor the point as to whether the corporation was in existence on January 2, 1924; for the Commissioner not only concedes but insists that this was so. In any event, the jurisprudence of the state of Washington establishes the proposition beyond a doubt. By coincidence, the name of the corporation, involved in the case of Haynes v. Central Business Property Co., 140 Wash. 596j 600, 601, 249 P. 1057, 1058, was stricken from the records of the Secretary of State on the same day as that on which the corporation here involved was stricken from the rolls; that is to say, July 1, 1921. The parallelism is important, since the date was prior to the enactment of chapter 144, p. 462, Session Laws of Washington 1923, section 5 of which reads in part as follows: “Every corporation whose name has been, or shall hereafter be, stricken from the records of the office of the Secretary of State in pursuance of law for failure to pay its annual license fee for two years, is hereby, authorized and permitted to apply to the Secretary of State for reinstatement at any time within three ■years after its name has been stricken,” etc. In the Haynes Case, supra, the Supreme Court of Washington said: “Even though the corporation had become bankrupt and its name stricken from the records in the secretary of state’s office, it had not ceased to exist as a corporation.” In Boyce v. Hinkle, 139 Wash. 164, 167, 245 P. 927, 928, the court specifically held that the act of 1923 was retroactive : “The meaning of this section is plain and unambiguous. The Legislature has said in clear and concise language that this corporation, whose name was stricken in July, 1916, has until July, 1919, to reinstate itself. There can be no question, then, that the statute is retrospective in character. * * * It follows, therefore, since the act is retrospective in character, that upon the date when the act became effective, June 7, 1923, all corporations whose names had been stricken from the roll for more than three years prior to the passage of the act, and who had not been reinstated, were subject to being dissolved by a notation duly spread upon the records of the office of the secretary of state.” See, also, State ex rel. New Arlington Hotel Co. v. Hinkle, 115 Wash. 298, 300, 197 P. 4; Wilkins Ditch Co. v. Drake, 115 Wash. 603, 606, 197 P. 769; State ex rel. Bowen v. Superior Court, 135 Wash. 315, 318, 237 P. 722; Patterson v. Ford, 167 Wash. 121, 124-126, 8 P.(2d) 1006; Moore v. Los Lugos Gold Mines, 172 Wash. 570, 589, 21 P.(2d) 253. In thé light of the foregoing decisions, there can be no doubt that on January 2j 1924, when the waiver in question was signed, the Bryson-Robison Corporation was in legal existence. As was said by this court in the case of California Iron Yards Co. v. Commissioner of Internal Revenue, 47 F.(2d) 514, 516, “The status of such a corporation * * * is one of suspended animation.” While assuming that the law of the state in which a corporation is domiciled governs as to the question of whether or not the corporation is in legal existence at any given time, the Commissioner, quoting from the California Iron Yards Co. Case, supra, indicates that the validity of the waiver is to be determined by federal law. Concurring in that view, we turn to the rule laid down by the Supreme Court of the United States on the proper method by which a corporation performs official acts. In Louisville, etc., Ry. Co. v. Louisville Trust Co., 174 U. S. 552, 573, 19 S. Ct. 817, 825, 43 L. Ed. 1081, the court said: “A corporation, though legally considered a person, must perform its corporate duties through natural persons, and is impersonated in and represented by its principal officers, the president and directors, who are not merely its agents, but are, generally speaking, the representatives of the corporation in its dealings with others. [Cases cited.] And the appropriate form of verifying any written obliga [401] tion to be the act of the corporation is by affixing the signatures of the president and secretary and the corporate seal.” An inspection of the photostatic copy of the waiver of January 2, 1924, one of the exhibits herein, discloses that the corporate seal had not been affixed to- the document. Furthermore, at the bottom of the form of waiver appears the following paragraph: “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.” Neither on its face, therefore, nor in the light of the accompanying letter from the respondent’s attorney, can the document be regarded as a valid waiver. It is signed by a former secretary of the corporation. It does not bear the corporate seal. The attorney’s letter emphatically puts the Commissioner on notice that the respondent considers himself only a former officer of the corporation, and that he will “not presume to act” for it. This is not a case where substance is to be sacrificed to form; the document is not a valid waiver in form, and avowedly was not intended to be such. Here form and substance coincide, and as a corporate waiver the paper of November 2, 1924, is a nullity. Next to be considered is the adequacy of the document as a waiver binding the respondent personally, as transferee of the Bryson-Robison Corporation. This contention can be disposed of briefly. The text of the document purports to bind the corporation. It is signed by the respondent as “former secretary” of the corporation, which is described as “taxpayer.” The accompanying letter plainly asserts that “the only way he [the respondent] could make a report would be * * * as * * * an individual, who was formerly secretary of a corporation,” etc. Neither the purported waiver nor the accompanying letter contains any statement that the respondent was the transferee of the corporation. Without distorting plain words from their ordinary meaning, a transferee’s waiver cannot be spelled out of the inchoate paper that we are here considering. Finally, we have the Commissioner’s contention that the respondent is estopped from denying that he waived the statute of limitations, because, “Except for the waivers, the Commissioner would have made the assessments within the original periods.” It is fundamental in the law of estoppel, however, that only those statements are binding which would tend to mislead a reasonable man. If on their face the statements do not tend to lull the other party into security, but on the contrary contain an affirmative warning, there is no estoppel. When the respondent informed the Commissioner that he would not presume to act for the corporation, when the document was signed only by a “former- officer,” and when it failed to bear the corporate seal, the Commissioner, as a reasonable man, should have been put on notice that, both in fact and in law, he had before him an abortive paper, binding neither corporation nor individual. Since the waiver of 1924 was a nullity, the period of limitations ran in favor of the corporation, and therefore in favor of the respondent as alleged transferee. In United States v. Updike, 281 U. S. 489, 493, 494, 50 S. Ct. 367, 368, 74 L. Ed. 984, the court was considering section 280 of the Revenue Act of 1926 (26 USCA § 1069), which is precisely one of the sections relied upon herein by the Commissioner. In that case the Supreme Court said: “The plain words of section 280 (a) are that, ‘except as hereinafter in this section provided,’ the liability of the transferee shall be ‘assessed, collected, and paid,’ subject, among other things, to the same ‘provisions and limitations as in the case of a deficiency in a tax imposed by this title (including * * * the provisions authorizing * * * proceedings in court for collection * * *).’ Nothing thereinafter provided in that section affects the application to the present case of these general words in respect of limitations, for, while the succeeding paragraphs contain provisions of limitation in respect of assessment, they contain none in respect of collection. * * “Second. It follows that, if by section 278 (d) the period of limitation had run in favor of the corporation, it had run in favor of the transferees.” [402] The Commissioner relies heavily upon the case of Helvering v. Newport Co., 291 U. S. 485, 486, 487, 54 S. Ct. 480, 78 L. Ed. 929, for the proposition that it is “not material whether the waiver of January, 1924, extended the Government’s time to proceed against the original taxpayer; and since the respondent contended and the Board of Tax Appeals held that the waiver was signed by him as an individual, there can be no question but that the assessment made against him in November, 1926, was timely.” An examination of the petition filed before the Board by the respondent herein, however, discloses that he denied that he was “a transferee of one half of the assets of the Corporation”; averred that he purchased the entire assets from Robison as “an independent,' outright purchase” ; and denied that he had ever “signed a waiver of the statute of limitations as an individual.” The statement contained in the Commissioner’s brief is therefore inaccurate, in so far as it purports to state the respondent’s position. It is true that the Board, in its memorandum opinion of July 20, 1932, said: “The most that could be said for the waiver which we have set out above, is that it was executed by Bryson as a transferee of the assets of the original taxpayer and we have held that a waiver executed by a transferee purporting to extend the time of assessment and collection of the tax against the original taxpayer, is ineffective to extend the statute of limitations as to the original taxpayer.” If the foregoing statement is to be taken as meaning that the Board concluded from an inspection of the purported waiver that it was signed by the respondent as transferee of the corporation, we need only observe that this court is not bound by an erroneous conclusion of law on the Board’s part. It is well settled that an appellate tribunal may affirm a case on grounds other than those which prompted the judgment below. The purported waiver is before us, and it speaks for itself. It is valid neither as against the corporation nor as against the ’ respondent individually. The Newport Co. Case, supra,' can be distinguished from the present controversy on the facts. There the waiver was signed by the president of the transferee corporation, as “successor in interest” to the transferor company; here we have no waiver signed by any one as transferee, but only by the “former secretary” of the original taxpayer corporation. It is familiar doctrine that “taxing acts, including provisions of limitation embodied therein [are] to be construed 'liberally in favor of the taxpayer.” United States v. Updike, supra, 281 U. S. 489, at page 496, 50 S. Ct. 367, 369, 74 L. Ed. 984. The decision of the Board of Tax Appeals is affirmed.