Heyman v. Commissioner , 20 B.T.A. 174 ( 1930 )

BERMAN HEYMAN, PETITIONER, v. COMMISSIONER OF INTERNAL REVENUE, RESPONDENT.

Heyman v. Commissioner

Docket No. 32275.

United States Board of Tax Appeals

20 B.T.A. 174; 1930 BTA LEXIS 2188;

June 30, 1930, Promulgated

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Assessment and collection of the tax herein are not barred.

Bruce A. Low, Esq., for the respondent.

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MARQUETTE

This proceeding is for the redetermination of a deficiency in income tax asserted by the respondent in the amount of $1,276.01 for the year 1922. The deficiency arises from the disallowance of a deduction of $15,891.22 taken by the petitioner on account of a loss claimed to have been sustained on the sale of a mine.

FINDINGS OF FACT.

The petitioner, a resident of San Francisco, Calif., filed an income-tax return for the year 1922 on March 13, 1923. On October 15, 1926, the petitioner and the respondent executed the following written consent or waiver:

INCOME AND PROFITS TAX WAIVER.

For taxable years ended prior to January 1, 1923.

October 15, 1926.

In pursuance of the provisions of existing Internal Revenue Laws, Berman Heyman, a taxpayer of 2111 Franklin St., San Francisco, California, 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 year (or years) 1922 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, 1927, and shall then 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) BERMAN HEYMAN,

Taxpayer.

D. H. BLAIR,

Commissioner.

By: E. C. WRIGHT,

Supervising Internal Revenue Agent.

The respondent, upon audit of the petitioner's return for 1922, determined that there is a deficiency in tax in the amount of $1,276.01 and the petitioner was notified thereof by letter dated September 14, 1927. The petition herein was filed November 12, 1927.

OPINION

MARQUETTE: The petitioner takes the position that assessment and collection of the additional tax asserted against him by the respondent are barred by the statute of limitations. In the light of the facts disclosed by the record, his position is not tenable. The return was filed on March 13, 1923. The four-year period for assessment provided by section 250(d) of the Revenue Act of 1921, section 277(a)(1) of the Revenue Act of 1921, and section 277(a)(2) of the Revenue Act of 1926, expired March 13, 1927, but before that date the petitioner and the respondent executed a written agreement extending the period for assessment until December 31, 1927, except "if a notice of a deficiency in tax is sent to said taxpayer by registered mail before said date and * * * 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." The deficiency letter was mailed within the period as extended by the written agreement and from that deficiency letter the present appeal was filed with this Board. Assessment and collection are, therefore, not barred.

The petitioner also alleges in his petition that the respondent erred in disallowing a deduction of $15,891.22, representing a loss sustained in 1922 on the sale of a mine. The material allegations respecting this loss are denied by the respondent in his answer and no evidence has been introduced with respect to the issue thus raised. The respondent's action must, therefore, be sustained.

Judgment will be entered for the respondent.