The opinion
WHITAKER, Judge
(dissenting).
I do not think the Commissioner complied with the provisions of law for giving notice before the assessment of a deficiency in tax. This notice was mailed to plaintiff at the Hotel Marion, Little Rock, Arkansas, but the Commissioner had no reason to believe that this was plaintiff’s last known address. Plaintiff’s return was filed in Little Rock, Arkansas, but the address given on it was “H. M. Gregory, L. C. Gaty, Agt., 205-9 South Second Street, Memphis, Shelby County, Tennessee.” On *976 this return it was stated, “Mr. H. M. Gregory is temporarily residing in California ‡ iji ft
On June 10, 1929, plaintiff wrote the Collector at Little Rock: “ * * * I would also thank you to change my address from 205 South 2nd Street, Memphis, Tenn., to read 1256 Woodruff Ave., West-wood Hills, Los Angeles, Calif., as I have moved out here. Also could it be arranged for me to pay the future payments here.”
In reply the Collector notified plaintiff: “As suggested in your letter, I am transferring the balance of your tax to Los Angeles and the quarterly installments for September and December should be made in that District.”
On account of an attachment against plaintiff’s property, levied at the instance of his wife, the Commissioner made a jeopardy assessment on December 11, 1930, against plaintiff. Plaintiff protested against this on December 29, 1930, in a letter written from 2645 Oakview Terrace, Maplewood, Missouri. Receipt of this letter was acknowledged in a letter to plaintiff addressed to him at Maplewood, Missouri.
Then on January 19, 1931, plaintiff, on the stationery of the Marion Hotel in Little Rock, Arkansas, wrote the Commissioner relative to the assessment against him and in that letter stated: “I am leaving today for Los Angeles, Calif., where I expect to remain for several months. My address there will be 2014 Glendon Ave., Westwood Hills, Los Angeles, Calif.”
The Commissioner replied to this letter and addressed plaintiff at the last named address in Los Angeles.
It is evident from this that the Commissioner had no reason to believe that plaintiff’s permanent address was the Hotel Marion, Little Rock, Arkansas. The address given on his return was Memphis, Tennessee, but before all the taxes due on that return had been paid plaintiff notified the Collector that he had moved to Los Angeles, and in his letter of January 19, 1931, he told the Commissioner explicitly that he would not be at the Hotel Marion after that date, but would be in Los Angeles, although at a different address in Los Angeles from that given in his letter of June 10, 1929. Plaintiff’s “last known address” was 2014 Glendon Avenue, Westwood Hills, Los Angeles, California, and the Commissioner, therefore, was entirely unwarranted in mailing the deficiency notice to him at Little Rock, Arkansas.
The Commissioner was prohibited by law from making any assessments until after the giving of the sixty-day notice required by law. Since this notice was not given, the Commissioner was without authority to make the assessment in May 1931, and, therefore, was without authority to levy the distraint warrant. If, therefore, the levy of the distraint warrant caused plaintiff any loss, he is entitled to recover under the terms of the jurisdictional Act.
Plaintiff’s own testimony and that of a Mrs. McKinley show that he had a firm offer for the equity in his home on Woodruff Avenue of $12,500, and that he told the person making the offer that he would accept it as soon as he could get the tax lien lifted. Before he could get it lifted, the offer was withdrawn. Thereafter the real estate market had so declined that plaintiff was unable to dispose of his home and it was sold under foreclosure and plaintiff lost his entire equity in it. I think he is entitled to recover $12,500 at least.
I think this is all he is entitled to recover because I do not think he has shown that he could or would have disposed of his other properties even though the tax lien had not been asserted against him. He showed an offer for the purchase of some of his household furnishings, but he does not say that he would have accepted this offer and would have made the sale, except for the tax lien asserted against his property, nor has he shown that the tax lien prevented him from selling his other properties.
I think plaintiff is entitled to recover the sum of $12,500.00.
MADDEN, Judge, concurs in the foregoing opinion.