The opinion
LOUIS HOFFMANN, PETITIONER, v. COMMISSIONER OF INTERNAL REVENUE, RESPONDENT.
Hoffmann v. Commissioner
Docket No. 11922.
United States Board of Tax Appeals
14 B.T.A. 1364 ; 1929 BTA LEXIS 2946 ;
January 17, 1929 , Promulgated
*2946 STATUTE OF LIMITATIONS. - Held, that assessment of the deficiencies in controversy is not barred by the statute of limitations.
Frank Hormuth, Esq., for the petitioner.
J. A. O'Callaghan, Esq., for the respondent.
TRUSSELL
*1364 The deficiencies in income taxes in controversy in this proceeding are in the amounts of $939.80 for the fiscal year ended January 31, 1919, and $828.01 for the fiscal year ended January 31, 1920, the assessment of which petitioner alleges is barred by the statute of limitations.
*1365 FINDINGS OF FACT.
Petitioner is a resident of Milwaukee, Wis.
On March 8, 1919, petitioner filed his income-tax return for the calendar year 1918, and on March 10, 1920, he filed his return for the calendar year 1919. The following waiver was duly executed:
FEBRUARY 20, 1924.
IT:PA:3
MP-302-App
INCOME AND PROFITS TAX WAIVER
In pursuance of the provisions of subdivision (d) of Section 250 of the Revenue Act of 1921, Mr. Louis Hoffman of Milwaukee, Wisconsin, and the Commissioner of Internal Revenue, hereby consent to a determination, assessment, and collection of the amount of income, excess-profits, or *2947 war-profits taxes due under any return made by or on behalf of the said individual for the year 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. This waiver is in effect from the date it is signed by the taxpayer and will remain in effect for a period of one year after the expiration of the statutory period of limitation, or the statutory period of limitation as extended by any waivers already on file with the Bureau, within which assessments of taxes may be made for the year or years mentioned.
(Signed) LOUIS HOFFMANN,
Taxpayer.
By D. H. BLAIR,
Commissioner of Internal Revenue.
At the request of petitioner and his counsel, the respondent adjusted his calendar year returns for 1918 and 1919 upon the basis of fiscal years ending January 31, 1919, and January 31, 1920, respectively, for the reason that petitioner was the member of a partnership which kept its accounts and made its returns upon the basis of its fiscal year ending January *2948 31.
Under date of February 9, 1925, and during the time petitioner's tax liability for the fiscal years ending January 31, 1919, and 1920, were still in controversy, the respondent addressed an original letter to petitioner requesting waivers for the said years and stating that if the waivers were not received the taxes would be recomputed upon the calendar year basis, which resulted in a larger deficiency than if computed upon the fiscal year basis. That letter was received by petitioner. On the same date respondent addressed a letter to petitioner's attorney stating that, "There is enclosed a carbon copy of a letter of this date addressed to the taxpayer." The said enclosure was a carbon copy of a letter dated February 9, 1925, and addressed to petitioner, but it was not a copy of the original *1366 letter above referred to dated February 9, 1925, and received by petitioner. Both the said original and the said carbon contained practically the same information, except that the carbon copy received by the attorney stated that if the waivers were not executed an immediate assessment of a total additional tax of $3,255.78 would be made upon a readjustment of the returns *2949 on a calendar year basis. Relying upon the carbon as a copy of the original letter received by petitioner, and also wishing to avoid an immediate assessment, petitioner's attorney advised him to execute the waivers requested by respondent. Upon advice of counsel and with knowledge of his rights and remedies in respect to the assessment and collection of the taxes in controversy, petitioner executed the following waivers:
IT:PA-3EPR-301
FEBRUARY 13, 1925.
INCOME AND PROFITS TAX WAIVER
(For taxable years ended prior to March 1, 1921)
In pursuance of the provisions of existing Internal Revenue Laws Mr. Louis Hoffman, a taxpayer of 405-24th Avenue, Milwaukee, Wisconsin, and the Commissioner of Internal Revenue hereby waive the time prescribed by law for making any assessment of the amount of income, excess-profits, or war-profits taxes due under any return made by or on behalf of said taxpayer for the fiscal year ended 1/31/19 under existing revenue acts, or under prior revenue acts. This waiver of the time for making any assessment as aforesaid shall remain in effect until December 31, 1925, and shall then expire except *1367 that if a notice of a deficiency in tax *2950 is sent to said taxpayer by registered mail before said date and (1) no appeal is filed therefrom with the United States Board of Tax Appeals then said date shall be extended sixty days, or (2) if an appeal is filed with said Board then said date shall be extended by the number of days between the date of mailing of said notice of deficiency and the date of final decision by said Board.
(Signed) LOUIS HOFFMANN,
Taxpayer.
By D. H. BLAIR,
Commissioner of Internal Revenue.
IT:PA-3EPR-301
FEBRUARY 13, 1925.
INCOME AND PROFITS TAX WAIVER
(For taxable years ended prior to March 1, 1921)
In pursuance of the provisions of existing Internal Revenue Laws Mr. Louis Hoffman, a taxpayer of 405-24th Avenue, Milwaukee, Wisconsin, and the Commissioner of Internal Revenue hereby waive the time prescribed by law for making any assessment of the amount of income, excess-profits, or war-profits taxes due under any return made by or on behalf of said taxpayer for the fiscal year ended 1/31/20 under existing revenue acts, or under prior revenue acts. This waiver of the time for making any assessment as aforesaid shall remain in effect until December 31, 1925, and shall then *2951 expire except that if a notice of a deficiency in tax is sent to said taxpayer by registered mail before said date and (1) no appeal is filed therefrom with the United States Board of Tax Appeals then said date shall be extended sixty days, or (2) if an appeal is filed with said Board then said date shall be extended by the number of days between the date of mailing of said notice of deficiency and the date of final decision by said board.
(Signed) LOUIS HOFFMANN,
Taxpayer.
By D. H. BLAIR,
Commissioner of Internal Revenue.
On December 17, 1925, the respondent mailed the so-called 60-day deficiency letter advising petitioner as to his final determination with regard to the taxes in controversy and petitioner has appealed from that notice.
OPINION.
TRUSSELL: The facts and circumstances involved in both of the taxable years here in controversy and the claims of this petitioner are identical with those set forth in the case of , and under authority of that decision we hold that the assessment of the deficiencies for the fiscal years ending January 31, 1919 and 1920, is not barred by the statute of *2952 limitations.
Judgment will be entered for the respondent.