Petition — Ramirez v. United States

Court, U. & =:

26-482 a FILED %&

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: AK, JR., CLERK

IN THE UNITED STATES SUPREME MOH, RO

FRANK A. RAMIREZ v. THE UNITED STATES

PETITION FOR A WRIT OF CERTIORARI TO REVIEW

A JUDGMENT OF

THE UNITED STATES COURT OF CLAIMS

Michael C. Ferguson

Ferguson & Berland

2000 Center Street, Suite 206

Berkeley, California 94704

Phone: (415) 548-9005

Attorney for Petitioner, Frank A. Ramirez

Solicitor General

Department of Justice

Washington, D. C. 20530

Attorney for Respondent

Scott P. Crampton,

Assistant Attorney General

Theodore D. Peyser, Robert S. Watkins,

Evelyn Leopold, Attorneys

Department of Justice

Washington, D. C. 20530

Attorneys for Respondent

PETITION FOR A WRIT OF CERTIORARI TO REVIEW

A JUDGMENT OF

THE UNITED STATES COURT OF CLAIMS

IN THE UNITED STATES SUPREME COURT Comes now MICHAEL C. FERGUSON who

respectfully represents to this Court the

following (as required by Paragraph 1 of Rule

23 of this Court).

FRANK A. RAMIREZ v. THE UNITED STATES

a) The opinion containing the judg-

PETITION FOR A WRIT OF CEPTIORARI TO REVIEW

A JUDGMENT OF

THE UNITED STATES COURT OF CLAIMS

ment sought to be reviewed herein is reported

at: - Fed 2nd__ (not yet reported)

207 Ct. Claims _(not yet reported)

38 AFTRA 2nd 476-5402 (Prentis Hall)

Michael C. Ferguson 76-2 USTC 49537 (CCH)

Ferguson & Berland

2000 Center Street, Suite 206

Berkeley, California 94704

Phone: (415) 548-9005

A true copy of the official report of the

Court of Claims judgment herein is attached

Attorney for Petitioner, Frank A. Ramirez hereto as Exhibit "A".

b) ij] The judgment sought to be

reviewed herein was dated July 9, 1976, and

was apparently entered July 9, 1967.

ii] No rehearing has been re-

quested in this case. No request has been

ole

made herein for an extension of time within

which to file this Petition.

iii] The Writ requested herein may

properly be granted by this Court pursuant to

the terms of 28 USC §1255(1).

See U.S. v. Estate of Grace 395 U.S.

316, 318 (1969).

c) On December 12, 1970, Ramirez agreed

in writing to extend until June 30, 1972, the

period during which a timely assessment

could be made of his 1967 income tax. The

period would otherwise have expired on April

16, 1971. The Agreement, executed by both

Ramirez and the government, was a standard

Internal Revenue Service Form 872 entitled,

"Consent Fixing Period of Limitation Upon

Assessment of Income and Profits Tax," which

reads, in pertinent part, as follows:

[The taxpayer and the gov-

ernment consent and agree]

[t]hat the amount of any Federal

income and profits taxes due

under any return (or returns)

oJe

made by or on behalf of the

above-named taxpayer (or tax-

payers) for the taxable year

ended December 31, 1967 under

existing or prior revenue acts,

may be assessed -at any time on

or before June 30, 1972 except

that if a notice of a deficiency

in tax is sent to the taxpayer

(or taxpayers) by certified or

registered mail on or before

that date, then the time for

making any assessment shall be

extended beyond that date by

the number of days during which

an assessment is prohibited and

for sixty days thereafter.

On March 14, 1972, Ramirez was sent,

by certified mail, a statutory notice of a

deficiency in his 1967 income tax. The defic-

iency was assessed against him on September

4, 1972. Collection was accomplished by

compulsorily applying overpayments inadver-

tently made in respect of later years' taxes

(1972 and 1973) in satisfaction of the earlier

deficiency.

Subsequently, Ramirez filed a claim

with the Internal Revenue Service for refund

of that part of his 1967 income tax which had

3a

been collected as a deficiency. The claim,

which alleged only that the assessment of

the deficiency had been barred by the sta-

tute of limitations, was in due course dis-

allowed. Thereafter, a suit in the Court of

Claims followed.

On cross motions for summary judgment

the Court of Claims held that the assessment

of the deficiency against Ramirez was timely

and not barred by the statute of limitations.

The sole question presented for review

herein is:

WHETHER THE ASSESSMENT OF THE

DEFICIENCY IN RAMIREZ'S 1967 INCOME TAX WAS

TIMELY?

This question involves the interpre-

tation of the language of IRS form 872 regard-

ing "extension" of the statutory assessment

period (and tangentially the interpretation

of §6503(a) (1) of the Internal Revenue Code).

d) i] The pertinent provisions of

~~

Internal Revenue Service Form 872 are set

forth in ic) hereof, above.

ii] §650l(a) of the Internal

Revenue Code provides:

GENERAL RULE.- Except as

otherwise provided in this

section, the amount of any tax

imposed by this title shall be

assessed within 3 years after

the return was filed (whether

or not such return was filed

on or after the date pre-

scribed) or, if the tax is

payable by stamp, at any time

after such tax became due and

before the expiration of 3

years after the date on which

any part of such tax was paid,

and no proceeding in court with-

out assessment for the collec-

tion of such tax shall be

begun after the expiration of

such period.

iii] §6501(b)(1) of the Internal

Revenue Code provides:

TIME RETURN DEEMED FILED.-

EARLY RETURN.- For pur-

poses of this section, a return

of tax imposed by this title,

except tax imposed by chapter

3, 21, or 24, filed before ;

the last day prescribed by law

or by regulations promulgated

pursuant to law for the filing

oGe

thereof, shall be considered

as filed on such last day.

iv] §650l(c) (4) of the Internal

Revenue Code provides:

EXTENSION BY AGREEMENT. -

Where, before the expiration of

the time prescribed in this

section for the assessment of

any tax imposed by this title,

except the estate tax pro-

vided in chapter ll, both the

Secretary or his delegate and

the taxpayer have consented in

writing to its assessment after

such time, the tax may be

assessed at any time prior to

the expiration of the period

agreed upon. The period so

agreed upon may be extended

by subsequent agreements in

writing made before the expir-

ation of the period previously

agreed upon.

v]) §6503(a) (1) cf the Internal

Revenue Code provides:

ISSUANCE OF STATUTORY

NOTICE OF DEFICIENCY.-

GENERAL RULE.- The running

of the period of limitations

provided in section 6501 or 6502

on the making of assessments or

the collection by levy or a

proceeding in court, in respect

of any deficiency as defined in

section 6211 (relating to

income, estate, gift and certain

~-6=

SON ONE ITT ILE LO LIL AE BENE NE RG RE TE TE eNO

excise taxes), shall after

the mailing of a notice under

section 6212(a) be suspended

for the period during which

the Secretary or his delegate

is prohibited from making the

assessment or from collecting

by levy or a proceeding in

court (and in any event, if a

proceeding in respect of the

deficiency is placed on the

docket of the Tax Court,

until the decision of the

Tax Court becomes final), and

for 60 days thereafter.

e) See Paragraph c) hereof, above.

£f) Inapplicable.

g) Federal jurisdiction in the court

of first instance in this case is based upon:

28 USC 1941.

h) This Writ is sought on grounds that:

i] The Court of Claims decision

in the instant case is in conflict with the

decision of the First Circuit in the case of

Hoosac Mills Corp. v. Commissioner 75 F. 2nd

462 (lst Cir. 1935) on the same matter -- see

footnote 10 of the Court of Claims decision

herein (Exhibit "A"); and

~

ii] The Court of Claims decision

in the instant case -- involving the inter-

pretation of an ambiguous standard form

widely used by the Internal Revenue Service

-- purports to resolve an important ques-

tion of Federal law which has not been,

but should be, settled by this Court.

This case is one in which certiorari

would be particularly appropriate because the

facts are both simple and not in dispute and

the legal issue involved is both significant

and clearly defined.

i) See Exhibits "A" (Court of Claims

Opinion) and "B" (IRS ruling) attached.

j) Inapplicable.

WHEREFORE Petitioner prays that this

Court grant its Writ of Certiorari to review

the judgment of the United States Court of

Claims in the instant case.

Dated: September 28, 1976, at

~~

Berkeley, California.

MICHAEL C.» FERGUSON,

Attorney for Frank A. Ramirez

On the Guited States Gourt of Claims

(Decided July 9, 1978) |

FRANK A. RAMIREZ v. THE UNITED STATES

A

Michael C. Ferquaon, attorney of record, for plaintiff.

Rose Anne Featherston, with whom was Assistant Attor-

ney General Scott P. Crampton, for defendant. Theodore D.

Peyser and Robert S. Watkins, of counsel.

APPENDIX

Before Laramore, Senior Judge, Davis, and SKELTON,

Judges.

ON DEFENDANT'S MOTION AND PLAINTIFF'S CROSS-MOTION FOR

SUMMALY JUDGMENT

Laramore, Senior Judge, delivered the opinion of the

court: a

In this suit for refund of Federal income tax,’ plaintiff

(hereinafter “taxpayer”) contends that the government’s

assessment of a deficiency in his income tax for 1967 was

barred by the statute of limitations. The record does not

specifically address the merits of the tax assessed, nor is there

any controversy as to the amount of the tax collected. Hence,

our consideration is limited solely to the question of whether

the assessment was made in a timely fashion. For reasons

enunciated below, we hold that it was.

‘ 1 All citations hereinafter made to the “Code,” or to sections contained

therein. are. unless otherwise indicated, in reference to the Internal Revenue

Code of 1954.

214-116-—76

EXHIBIT A.

2

The material facts are not in dispute. On December 12,

1970, taxpayer agreed in writing to extend until June 30,

1972 the period during which a timely assessment could be

made of his 1967 income tax. The period would otherwise

have expired on April 16, 1971.* The agreement, execnted by

both taxpayer and the government. was a standard Internal

Revenue Service Form 872 entitled. “Consent Fixing Period

of Limitation Upon Assessment of Income and Profits Tax.”

which reads, in pertinent part. as follows:

[The taxpaver andthe gorermment consent and agree]

[t}hat the amount of anv Federal income and profits

taxes due under any return (or returns) made by or on

behalf of the above-named taxpaver (or taxpayers) for

the taxable year ended December 31. 1967 under existing

or prior revenue acts, may be assessed at any time on or

before June 30, 1972 except that if a notice of a deficiency

in tax is sent to the taxpayer (or taxpayers) by certified

or registered mail on or before that date, then the time

for making any assessment shall be extended bevond that

date by the number of days during which an assessment

is prohibited and for sixty days thereafter.*

On March 14, 1972. taxpayer was sent. by certified mail,

a statutory notice of a deficiency in his 1967 income tax. The

deficiency was assessed against him on September 4, 1972.

Collection was accomplished by compulsorily applying over-

payments inadvertently made in respect of later years’ taxes

(1972 and 1973) in satisfaction of the earlier deficiency.

Subsequently, taxpayer filed a claim with the Internal

Revenue Service for refund of that part of his 1967 income

tax which had been collected as a deficiency. The claim.

which alleged only that the assessment of the deficiency had

been barred by the statute of limitations, was in due course

disallowed. Thereafter, this suit followed.

* Section 6501(a) provides, with exceptions not here relevant. that the

amonnt of any tax impored by the Code shall be assessed within three years

after the return repo.ting such tax was filed. Section 6501(b) (1) provides that

returns filed before the last day prescribed by law for the filing thereof shall

be considered as filed on the last day. See also Treas. Reg. § 301.6501(b)-—1(a).

In the instant case. under section 6072(a), taxpayer's 1967 return was due on

or before April 15. 1968. Therefore, the 3-year statute of limitations com-

menced running on April 16. 1968. and would have expired on April 16, 1971.

* Except for the dates December 31. 1967 and January 30, 1972, which were

typewritten, all of the language quoted above was in printed form.

Inasmuch as taxpayer grounds his right to recovery upon

the sole argument that the assessment of the tax was not

effective until after the statute of limitations had outlawed

it, logic dictates that we first examine the relevant statute

or statutes relating to the limitation of assessments. Section

6501(a)* embodies what may be referred to, for Federal tax

assessment purposes, as a general statute of limitation. It

directs that, unless otherwise provided, the amount of any

tax imposed by the Internal Revenue Code be assessed within

three years after the date on which the return for such tax

was filed. Section 6501 (c) (4),° however, permits a taxpayer

and the government to mutually consent to enlarge, by

written agreement entered into prior to the expiration of

the natural period of limitation, the time within which any

tax, except an estate tax, may be timely assessed.

In the case at bar, taxpayer and the government imple-

mented subsection (c) (4) through the written agreement set

out in the paragraph above. The undisputed effect of the lan-

guage therein used was to extend the expiration date of the

statutory period, at the very least, to June 30, 1972. However,

were June 30, 1972 an immutable cutoff date, taxpayer would,

without more, prevail in this case because the assessment, on

September 4, 1972, was made more than two months later.

But we note that the agreement contained a proviso which

specified that if a notice of deficiency were sent to the tax-

payer before that date (meaning June 30, 1972), then the

time for making an assessment would be further extended.

**Sec. 6501. LIMITATIONS ON ASSESSMENT AND COLLECTION.

“(a) GuneraL Rvte.—-Except as otherwise provided in this section, the

amount of any tax imposed by this title shall be assessed within 8 years after

the return was filed (whether or not such return was filed on or after the date

prescribed) or, if the tax is payable by stamp, at any time after such tax

became due and before the expiration of 3 years after the date on which any

part of such tax was paid, and no proceeding in court without assessment for

the collection of such tax shall be begun after the expiration of such period.”

*[(Sec. 6501) “(c) Excurrions.— * * * (4) Eatension by Agreement.—

Where, before the expiration of the time prescribed in this section for the

assessment of any tax imposed by this title, except the estate tax provided in

chapter 11, both the Secretary or his delegate and the taxpayer have consented

in writing to its assessment after such time, the

4

Such a notice was sent on March 14, 1972. Thus, the precise

number of days by which the June 30, 1972 original cutoff

date was extended upon the sending of the notice, determined

the timeliness vel non of the assessment.

Further scrutiny of the agreément is necessary. The

formula used in the agreement under which the contractual

limitation period was to be extended, incorporated by ref-

erence a calculable but unspecified measure. It provided that

the time for making any assessment would be extended (after

the notice of deficiency was sent) by the number of days dur-

ing which an assessment would be prohibited, and for 60

days more.

Dual issues are raised by this formula. One concerns the

numerical measure used, 7.e., the number of days. However,

both parties urge that 90 days is the correct figure. In light of

section 6213(a),* we agree. That section provides (with cer-

tain exceptions not relevant here) that where the govern-

ment issues a notice of a deficiency, the tax may not be as-

sessed until 90 days have expired. Evidently, this period per-

mits the taxpayer time to resist the deficiency, either adminis-

tratively or by filing a petition in the Tax Court. In any case,

90 days is the proper measure to be incorporated into the

agreement, and the time for making any assessment was, thus,

to be extended for 90 days and 60 days thereafter, or a total

of 150 days.

The other, more debated issue, concerns the manner in

which the contractual limitation period was to be enlarged.

*“Sec. 6213. RESTRICTIONS APPLICABLE TO DEFICIENCIES ; PETITION TO TAX

Court.

“(a) Time for Filing Petition and Restriction on Assessment.—Within 00

days, or 150 days if the notice is addressed to a person outside the States of

the Union and the District of Columbia, after the notice of deficiency author-

ized in section 6212 is mailed (not counting Saturday, Sunday, or a legal

holiday in the District of Columbia as the last day), the taxpayer may file a

petition with the Tax Court for a redetermination of the deficiency. Except as

otherwise provided in section 6861 no assessment of a deficiency in respect of

any tax imposed by subtitle A or B or chapter 42 and no levy or proceeding in

court for its collection shall be made, begun, or prosecuted until such notice

has been mailed to the taxpayer. nor until the expiration of such 90-day or

150-day period, as the case may be, nor, if a petition has been filed with the

Tax Court, until the decision of the Tax Court has become final. Notwith-

standing the provisions of section 7421(a), the making of such assessment or

the beginning of such proceeding or levy during the time such prohibition is in

force may be enjoined by a proceeding in the proper court.”

Taxpayer contends that the 150 days was intended to run

from the date the notice of deficiency was sent (March 1:,

1972) or only until August 11, 1972. This interpretation

would bar the September 4, 1972 assessment.

Two subarguments are said, by taxpayer, to buttress this

contention. The first is that the phrase “that date,” used for

the second time in the agreement, referred not to June 30,

1972, but to the date upon which the notice of deficiency was

sent. Taxpayer, therefore, takes the position that the phrase

“that date” twice used in the agreement, referred to two dif-

ferent dates.

After examining the language of the agreement, we are

unable to accept this line of reasoning. It is not reasonable

to assert that the phrase “that date”, used twice in the same

sentence, referred to two separate dates, without any hint

that it did in the language itself. The only date set forth

in the agreement that refers to the assessment was June 30,

1972. Under the plain wording of the agreement, which be-

lies the construction taxpayer would place upon it, tax-

payer’s position is patently incorrect, and we need not devote

any more time to this facet of his argument.

Taxpayer's second point is that the agreement at bar, and

in particular the extension proviso contained therein, must

be read not merely in pari materia with section 6213(a) of

the Code (providing for the 90-day prohibition upon assess-

ment), but also in light of the effect that section conld have

upon the making of an assessment within a period of limita-

tion extended by agreement. Taxpayer perceives that, in

the absence of an automatic extension proviso, the govern-

ment could find itself in the anomalous position of sending

a notice of deficiency near the end of a contractual limita-

tion period and being foreclosed from ever making the as-

sessment because the following 90 days would run past the

contractually extended cutoff date. The provisio is said to

be designed specifically to avoid this pitfall by allowing

the government a 60-day grace period immediately after

the 90 days comes to an end.

- While this argument of taxpayer has appeal insofar as it

signals the animus behind the proviso, we think that the tax-

payer has, more or less, jumped to the conclusion that a “fair”

6

construction of the language must allow for only the shortest

extension of the contractual limitation period that would

assure the government an opportunity to assess in a timely

fashion. This is not necessarily so. The rather explicit lan-

guage of the proviso provides that the 150 days be applied

so as to “extend” the contractual limitation period by that.

amount, and the wording of the proviso admits of no other

tenable construction.

In point of fact, at the time the agreement was executed

the identical result was already assured by the Code. Section

6503 (a) (1)? suspends the running of the period of limita-

tions, when a notice of deficiency is sent, for the period dur-

ing which an assessment is prohibited and for 60 days there-

after. In light of the striking similarity between section 6503

(a) (1) and the proviso contained in the agreement, we think

the latter was designed to foster the policy underlying the

former. That is to say, the section and proviso avoid in the

identical manner the pitfall to which taxpayer refers.

Moreover, this is a conclusion we draw not by mere cursory

comparison of the corresponding language of section 6503

(a)(1) and the proviso. Our research discloses that section

277(b) of the Revenue Act of 1924,° precursor to section

6503(a)(1) of the current Code, used the word “extended”

to achieve the same effect that “suspended” achieves in the

current section of the Code. Apparently, in the Revenue Act

7*Spec. 6503. SUSPENSION OF RUNNING OF PERIOD OF LIMITATION.

“(a) Issvance oF Statutory Notice or Dericrency.—

“(1) GenweraL Roie.—The running of the period of limitations provided in

section 6501 or 6502 on the making of assessments or the collection by levy

or a proceeding in court, in respect of any deficiency as defined in section 6211

(relating to income, estate, gift and chapter 42 taxes), shall (after the mailing

of a notice under section 6212(a)) be suspended for the period during which

the Secretary or his delegate is prohibited from making the assessment or from

collecting by levy or a proceeding in court (and in any event, if a proceeding

in respect of the deficiency is placed on the docket of the Tax Court, until the

decision of the Tax Court becomes final), and for 60 days thereafter.”

* Section 277(b) of the Revenue Act of 1924, states as follows:

“The period within which an assesament is required to be made by eub-

division (a) of thie section in reapect of any deficiency shall be extended (1)

by 60 days if a notice of such deficiency has been mailed to the taxpayer under

subdivision (a) of section 274 and no appeal has been filed with the Board of

Tax Appeals, or (2) if an appeal has been filed, then by the number of days

between the date of the mailing of such notice and the date of the final

decision by the Board.” [Emphasis supplied.)

—

. eer

Rg PR RS Ie PR Negro meg:

we

7

of 1926, section 277(b),*? Congress varied the term used to

describe the manner under which the limitation period was

to be automatically enlarged in certain instances. The 1924

Act provided that the limitation period would be “extended”,

while the 1926 Act provided that the running of the limite-

tion period would be “suspended.” With either of these terms,

the manner in which the limitation period was to be enlarged

is identical. We find little distinction, for purposes of the in-

stant case, in saying on the one hand that a period is to be

“extended” by 90 days and, on the other hand, that the run-

ning of a period is to be “suspended” for 90 days. Thus, the

change from “extension” to “suspension” in the tax statutes

had, for purposes of our analysis, no apparent effect on the

manner in which the was to be applied.

In Continental Oil Co. v. United States, 83 Ct. Cl. 344,

144 F. Supp. 533, cert. denied, 301 U.S. 694 (1986), after

quoting from both statutes, we applied the formula of the

1926 Act by taking the original period of limitations, allow-

ing a number of days of suspension during which the period

was tolled, and then at the end adding the unexpired period.

It is readily apparent that if the term “extended” had been

used, the same effect would have been achieved.

This analysis of the legislative switch from “extended” to

“suspended” suggests that because no change in effect was

intended, a prior opinion of this court which has already con-

strued the use of “suspended” in a context similar to the case

at bar, should be helpful and persuasive in our effort to treat

the proviso’s use of the word “extended.” In Olds & Whipple,

Ine. v. United States, 86 Ct. Cl. 705, 724, 22 F. Supp. 809, 819

(1938), the court stated :

* * * [T]he Commissioner is entitled, in making the

ee determined by the Board, to

use the ae oa with any

portion of t stenne of tentiotion nemaining at the time

* Section 277(b) of the Revenue Act of 1926, provides in part:

“The running of the etatute of Umitations provided in this section or in

Castle O08 Gh Se GANG SE enNtaRnaNsS SRS Ge UAE Co en aie

proceeding in court for collection, in reepect of any defloiency, shall (after the

mailing of a notice under euddivision (4) of section $74) be suspended for the

period during which the Commissioner is prohibited from making the assess-

ment or beginning distraint or a proceeding in court, and for 60 days there-

after.” [Emphasis supplied.)

it became suspended the mailing of the deficiency

notice. We think the langunge of th sata is noe re

sonably susceptible to an construction. It plain]

states that the running of the statute of limitation s

be suspended and this can only mean that when the

period of suspension ceases the limitation period again

commences to run. [Emphasis supplied. ]

And the court summarized this point, /d. at 725, 22 F. Supp.

at 819:

* * * Upon our interpretation of section 277(b) of

the Revenue Act of 1926 as amended and section 277 of

sanded by tho expended ppped Ebene

e i expire as to

[the A in question, prior to the date of the assess-

ment) {Mmpbaste ad Note the premeee of the

words “extended” and “suspended”.

The result of “tacking” reached by the court in Olds &

Whipple, Inc., supra, under section 277(b) of the Revenue

Act of 1926, is no different than that mandated by the express

language of the agreement and proviso presently under

consideration.

On the facts of this case, a statutory notice of deficiency

was sent to taxpayer on March 14, 1972, and under section

6213(a), as mentioned above, no assessment of the deficiency

in taxes could have been made for 90 days. Therefore, under

the express terms of the agreement. and the proviso con-

tained therein, the period during which the government

could properly assess a tax deficiency was extended 90 days

beyond the June 30, 1972 original cutoff date, and for 60 days

thereafter, or, until November 27, 1972. The assessment, made

on September 4, 1972, was therefore within the period of the

extension provided for by the proviso in the agreement.

Finally. one further wrinkle needs to be covered. While

our consideration of this case has been aimed, and the briefs

of the parties have been directed, toward a construction of

the subject agreement and the automatic extension proviso

contained therein, we cannot neglect to note that the same

result would have been reached merely by pointing to sec-

tion 6503(a)(1) which, itself, suspends the running of the

period of limitations.

9

Section 6503(a)(1) applies to the “* * * running of the

period of limtations provided in section 6501 * * *.” Since

the agreement entered into between the parties was clearly

done under authority of section 6501(c) (4), the extended

contractual period of limitation was as much a “period of

limitations provided for in section 6501” as was the other-

wise controlling general 3-year period provided for in sec-

tion 6501(a). Consequently, upon the mailing of the notice

of deficiency by the government, section 6503(a) (1), on its

own, suspended the extended contractual period of limita-

tion for the same 150 days and, without the aid of the auto-

matic extension proviso in the agreement, the assessment

would have been timely in any case.*®

Accordingly, for the foregoirg reasons,-defendant’s mo-

tion for summary judgment is granted, plaintiff’s cross-

motion is denied, and the petition is dismissed.

%” This second interpretation of the case, like the first one based upon the

effect of the automatic extension proviso, relies upon both Continental Oil

Co. v. United States, supra, and Olds 4 Whipple, Inc. v. United States,

supra. In doing so, both interpretations specifically adhere to the “tacking”

principle mentioned, where under either the extension agreement or section

6503(a)(1) the period during which an assessment is prohibited and 60 days

more is “tacked” on to the limitation period. To the extent that Hoosac Mills

Corp. v. Commiesioner, 75 F. 2d 462 (ist Cir. 1935), cited by taxpayer in the

instant case, departs from this formula, we decline to follow it. Accord, Aura

Grimes Bales v. Commissioner, 22 T.C. 255 (1954). See also, Olde 4 Whipple,

Inc. ¥. United States, supra, at 724, 22 F. Supp. at 819.

U.S. GOVERNMENT PRINTING OFFICE: 1976

Depart. ..ent of the Treasury

istrict

Internal Reverlue Service

in reply refer to:

“"yebrusry 1, rohd-93» Code 431

2000 Center Street, Suite 204

Berkeley, California 94,704

RE: Frank A. Ramirez

SS O8L4-32-3529

Kind of Tax: Income

Tax Period Ended: 1 2..31~67

Amount of Claim: $763.00

Dear Taxpayer:

We have examined your claim and propose the following:

(] Partial disallowance, as shown in the enclosed report.

) Full disallowance, as shown on the back of this letter.

[] Full disallowance, additional tax due as shown in the enclosed

report.

If either of the first two boxes is checked and you accept our

findings, please sign and return the Acceptance Form on the back of the

enclosed copy of this letter. Also, please sign and return the enclosed

Waiver of Statutory Notification of Claim Disallowance, Form 2297. If

the third box is checked and you accept our findings, please sign and

return the Form 2297 and a copy of the report.

If you do not accept our findings, you may do one of the following

’ within 15 days from the date of this letter:

1. Mail us any additional evidence or information you would like

us to consider.

2. Request a discussion of our findings with one of our employees

who is familiar with your return. At that time you may subsit

any additional evidence or information you would like him to

consider. If you plan to come in for a discussion, please

phone or write us in advance so that we can arrange a time and

place that is convenient.

EXHIE!” B

(OVER) Form L-83 (Rev. 5-71)

3. Request a conference with a member of our conference staff.

The conferee will be someone who has not examined your réturn.

However, if the examination was conducted entirely by cor-

respondence, we would appreciate your first discussing our

findings with one of our employees who is familiar with your

return.

The enclosed instructions concerning unagreed cases explain your

appeal rights.

If we do not hear from you within 30 days, we will have no al-

ternative but to process your case on the basis of the information we

have. If you write us about your case, please use the above address

and refer to the symbols in the upper right corner of this letter. A

self-addressed envelope is enclosed for your convenience.

Thank you for your cooperation.

Enclosures:

[] Examination Report

Copy of this letter

Form 2297

Instructions

Envelope

Sincerely yours,

District Director

Based on all available information, the additional tax was properly

assessed in accordance with the applicable statutes.

ACCEPTANCE—1 accept the findings shown above or in the report and agree to the disallowance of my

claim to the extent proposed in such findings.

If a joint return was filed, both husband and wife should sign this acceptance.

TAXPAYER SIGNED

(OVER) Form L-93 (Rev. 5-71)

Address any reply to: P.O. Box 36040 San Francisco, Calif. 94102

om of the Treasury

Oistrict Director

Internal Revenue Service

Date: in reply refer to

April 17, 1975 | Fu-1452, Code 440

084 32 3529

9425124812801

1040

1967

$763.00

Oct. 17, 1974

Dear Taxpayer:

We have examined your claim for an adjustment of your taxes. I am

sorry to tell you that we cannot allow your claim for the reasons stated

below. This decision rests on certain provisions of the internal revenue

laws and regulations.

This letter is yovr legal notice that your claim is disallowed in

full.

If you wish to begin suit or proceedings for the recovery of any

taxes, penalties, or other moneys for which this notice of disallowance

is issued, the law requires you to do so within 2 years from the mailing

date of this letter.

Sincerely yours,

YL. Breet

District Director

Reasons for disallowance: Per audit determination,

FL-1452 (10-73)

Form 2297

(REV. JULY 1970)

DEPARTMENT OF THE TREASURY - INTERNAL

OF CLAIM DISALLOWANCE

ENUE SERVICE

WAIVER OF STATUTORY NOTIFICATION

(Name;

of e - iad * siel- ar)

(Number, Street. City or Town, Stete. ZIP Code}

rm 2 af >i

waive the requirement under section 6532(a)(1) of the Internal Revenue Code that a notice of claim disallowance be

to me by certified or registered mail for the claims for credit or refund shown in column (d) below.

| understand that the filing of this waiver is irrevocable and it will begin the two-year period for filing suit for

refund of the claims disallowed as if the notice of disallowance had been sent by certified or registered mail.

.

(a) (b) (c) (d)

AMOUNT OF CLAIM

TAXABLE PERIOD ENDED KIND OF TAX AMOUNT OF CLAIM

1 DISALLOWED

12-31-67 Income $763.00 $753.00

SIGNATURE INSTRUCTIONS TAXPAYER

SIGN HERE mene is ee ees Sheocoeeeeseeeeceeesooe® c006086060060068466668

if @ pont return wes filed for a (Oete signed

any years covered by this waiver. | If JOINT RETURNS,

both huseend and wife must sign | TAXPAYER'S WIFE

thi’ warver uniess one, acting BIGN MERE ween eee eee eee meee Fee eeeeneeeeeeeesees °

under @ power of attorney, 8/97 (Oate signed

as agent for the other.

This waiver mey be signed by an oo

attofney or agent of the taxpayers ve

provided such action is specifi- SIGN HERE ——pe “eee ewe eneeeneneenewreenenenerr errr eee eee *" (pete signed)

cally euthorized by @ power of gned)

attorney which, if not previously CORPORATE (The internal Revenue Service

ree Fr ——éie SHS SSO SHORES SED EC OSES OR O+ESSEO Oe not require @ see! on this form,

but if one is used, please piece

If this waiver is signed by a here.)

Person acting in a fiduciary

capacity (such as executor,aomin~f le ee eee eee eee eE®

istrator, trustee, etc.), Form 56,

Notice of Fiduciary Relationship,

should, uniess Previously tiled, ee ee ee ee .

accom@any this form.

if the taxpayer is @ corporation, | CORPORATE

this waiver must be signed with OFFICERS “e*eeenenenenenenwnenenenenenenenenenwn een wr rere rrr eee ee . eeeeseseseseeeres

the corporate name followed by | SIGN HERE (Title) (Dete signed)

the signature and title of the

officers) authorized to sign. ereeereeeeeeeeee eee eeeeeeeeeeeeeeeee i see eeeeer eee eee eeeeees —

ef eee eweweneee.® ee oe ee ee

NOTE - Filing this waiver within six months from the date the claim was filed will not permit filing a suit for refund before the six-

month period has elapsed unless a decision is made by the Service within that time disallowing the claims.

@ GPO : 1972 © - 103-228

FORM 2297 (nev. 7-