Lutcher & Moore Cypress Lumber Co. v. Commissioner

*887 The respondent has asserted deficiencies for the calendar years 1917, 1918, and 1919 in the respective amounts of $34,748.75, $40,399.59, and $33,861.32. The petitioner's sole contention in this proceeding is that the proposed deficiencies are now barred by the statute of limitations. The facts have been stipulated by the parties.

*888 FINDINGS OF FACT.

The petitioner is a corporation with its principal place of business at Lutcher, La. It filed its income and profits-tax returns for the calendar year 1917 on March 30, 1918, for 1918 on June 12, 1919, and for 1919 on March 13, 1920.

On January 19, 1923, the petitioner and the Commissioner executed the following waiver:

FORM OF WAIVER

Lutcher & Moore Cypress Lbr. Co., Ltd., a corporation, organized under the laws of the State of Louisiana, hereby*2306 consents to an assessment of any and all taxes imposed by the Act of Congress approved September 8, 1916 as amended by the Act of Congress approved October 3, 1917, and shown or found to be due on the basis of its net income received from all sources during the year ended December 31, 1917, and said corporation hereby waives any statutory limitation as to the time in which such taxes should have been assessed.

(Signed) LUTCHER & MOORE CYP. LBR. CO. LTD.

(Corporation)

Per W. H. STARK, Pres.

Approved:

Commissioner of Internal Revenue.

Date Jan. 19, 1923.

On February 28, 1924, the petitioner and the Commissioner executed a second waiver under the provisions of section 250(d) of the Revenue Act of 1921, extending the period for assessment and collection on any taxes due from the petitioner for the years 1917 and 1918 to February 28, 1925.

On January 2, 1925, the petitioner and the Commissioner, pursuant to section 278(c) of the Revenue Act of 1924, executed written consents extending the period for assessment and collection of any taxes due from the petitioner for each of the years 1917, 1918, and 1919 to January 2, 1926.

On*2307 November 10, 1925, the petitioner and the Commissioner executed a consent in writing extending the period for assessment of any taxes due from the petitioner for the years 1917, 1918, and 1919 to December 31, 1926.

On November 22, 1926, the petitioner and the Commissioner executed another written consent extending the period for assessment of any taxes due from the petitioner for the years 1917, 1918, and 1919 to December 31, 1927.

On June 27, 1927, the respondent mailed a deficiency notice to the petitioner disclosing deficiencies for the years 1917, 1918, and 1919 in the amounts above shown. The petition and answer herein were filed on the respective dates of August 22, 1927, and October 20, 1927.

*889 OPINION.

SMITH: The petitioner contends that the taxes for 1917 are barred because not assessed and collected within the statutory five-year period or within any extension thereof agreed to by the petitioner and the Commissioner by a consent in writing for a determination, assessment, and collection of the taxes, as provided in section 250(d)(1) of the Revenue Act of 1921. It contends that the so-called waiver executed by it and the Commissioner*2308 on January 19, 1923, provided merely for a later assessment, and, therefore, was not a consent to a later determination, assessment, and collection as authorized by the statute. It cites , in support of this contention. It further contends that the subsequent waiver executed on February 28, 1924, extending the time for assessment and collection of taxes for 1917 and 1918 to February 28, 1925, was of no effect as to the 1917 taxes, which were at that time already barred, and cites , in support of this contention.

We are of the opinion that , is not in point in this proceeding. In that case there was no question of a waiver of the statute of limitations filed by the taxpayer. The filing of the waiver by the petitioner on January 19, 1923, in the instant proceeding, sharply differentiates this case from the decision of the Supreme Court in the above cited case.

The facts in this proceeding are substantially the same as those considered by the Board in*2309 , affirmed by the . In that case the taxpayer, on February 7, 1921, filed a waiver as to the time for assessment of any additional tax for the calendar year 1917. On March 3, 1924, he signed a waiver or consent as to the "determination, assessment, and collection of the tax due for the year 1917." It was held that the chain of waivers in evidence operated to prevent the statute of limitations from tolling. The decision of the court is based upon many cited authorities. That decision is controlling here.

Judgment will be entered for the respondent.