# Epstein v. Commissioner > United States Board of Tax Appeals · August 11, 1936 · 34 B.T.A. 925 URL: https://www.frixlaw.com/law-library/cases/4632377 ## Case - **Full name:** HENRY H. EPSTEIN, v. COMMISSIONER OF INTERNAL REVENUE - **Court:** United States Board of Tax Appeals - **Decided:** August 11, 1936 - **Citations:** 34 B.T.A. 925; 1936 BTA LEXIS 628 - **Precedential status:** Published - **Opinion:** Opinion - **Judges:** Murdock - **Cited by:** 2 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/4632377 ## Opinion text HENRY H. EPSTEIN, PETITIONER, v. COMMISSIONER OF INTERNAL REVENUE, RESPONDENT. Epstein v. Commissioner Docket No. 66350. United States Board of Tax Appeals 34 B.T.A. 925 ; 1936 BTA LEXIS 628 ; August 11, 1936 , Promulgated *628 The Board has jurisdiction and, when a petition is filed, it is its duty to review the administrative action of the Commissioner in determining a deficiency and penalties. It is not relieved of this duty by the fact that, in a criminal proceeding, the taxpayer was sentenced to pay and did pay the amount determined as the tax by the court. George Walter Smith, Esq., for the petitioner. E. A. Tonjes, Esq., for the respondent. MURDOCK *925 The Commissioner determined a deficiency in income tax of $5,679.65 for the year 1925 and a penalty of $4,259.74. The penalty consisted of a 50 percent penalty under section 275(b) of the Revenue *926 Act of 1926, and a 25 percent penalty under section 3176 of the Revised Statutes. The deficiency is not contested, but the petitioner claimed that the penalties were improperly imposed. FINDINGS OF FACT. The petitioner is an individual, residing in Pittsburgh, Pennsylvania. He failed and neglected to file any income tax return for the year 1925, although he had a net income of $52,777.78 for that year. The deficiency is due to fraud with intent to evade tax. OPINION. MURDOCK: The petitioner *629 argues that all questions between the Commissioner and the taxpayer relating to taxes and penalties for 1925 have been settled in a criminal proceeding. The taxpayer there pleaded guilty to an indictment charging him with an attempt to evade income tax upon his income for 1925. He was sentenced to pay the tax of $5,679.65 and he has paid it. The court was not concerned with the penalties here involved. The present proceeding before the Board is quite different from the criminal proceeding above described. . The Board has been established to review the action of the Commissioner in determining deficiencies. It reviews and approves or disapproves this administrative act. If the Commissioner acted properly in determining the deficiency and claiming the penalty in a case before the Board, the Board must affirm the administrative action of the Commissioner. The Board then says that the Commissioner did not err in the performance of his duty in so far as he determined that the tax and penalty were due at the time he sent his notice of deficiency. The payment of the tax after the mailing of the notice in no way changes the function *630 of the Board. It still reviews the action of the Commissioner as set forth in his notice of deficiency. Payment is a matter between the Commissioner and the taxpayer which does not change the fact that the determination of the Commissioner as expressed in his deficiency notice was either correct or incorrect and does not change the duty of the Board to decide whether or not that determination was correct. Here the only evidence before the Board indicates clearly that the Commissioner did not err in determining the deficiency and claiming the penalty. . The criminal proceeding does not relieve the Board of its function and duty to review the determination of the Commissioner. . Decision will be entered for the respondent. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/4632377. Public record. Not legal advice.