# Plunkett v. Commissioner > United States Board of Tax Appeals · March 29, 1940 · 41 B.T.A. 700 URL: https://www.frixlaw.com/law-library/cases/4497989 ## Case - **Full name:** THEODORE R. PLUNKETT, v. COMMISSIONER OF INTERNAL REVENUE - **Court:** United States Board of Tax Appeals - **Decided:** March 29, 1940 - **Citations:** 41 B.T.A. 700; 1940 BTA LEXIS 1154 - **Precedential status:** Published - **Opinion:** Concurring in part by Mellott - **Judges:** Harron, Smith, Mellott, Only, Disney, Agree, Murdock - **Cited by:** 38 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/4497989 ## Opinion text Mellott, concurring and dissenting: I concur in the holding to the effect that the $70,000 constituted taxable income to the petitioner but am of the opinion that the 25 percent delinquency penalty should not be imposed. The document filed by petitioner with the collector on March 18, 1935, was treated as a return, though not signed by him. It was audited by the department, and the collector “requested a statement from the petitioner as to why his return was delinquent.” The check, which petitioner enclosed, was cashed and the amount thereof, together with' interest, was refunded to petitioner about a year later because he had included in his gross income his salary as state senator, which was not then taxable. Apparently no question was ever raised because the return was unverified until several years later, when the present deficiency was determined. Shortly thereafter petitioner “filed a properly verified income tax return for 1934.” The penalty, in the language of the statute, is not to be imposed “when a return is filed after' * * * [the time prescribed by law] and it is shown that the failure to file it was due to reasonable cause *712 and not due to willful neglect * * Being of the opinion that petitioner’s late filing was not due to willful neglect, I respectfully note my dissent to the imposition of the penalty. Murdock and Hakron agree with the above. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/4497989. Public record. Not legal advice.