Public-domain · open source
OpenJurist

81 F.2d 521

Docket Nos. 7958, 7959.

Poynor v. Commissioner

Fifth Circuit Court of Appeals

Decided March 7, 1936.

Fifth Circuit Court of Appeals · decided 1936-03-07

2 counsel of record

Key passage — most relied on by later courts

““§ 6212. Notice of deficiency “(a) In general. — If the Secretary or his delegate determines that there is a deficiency in respect of any tax imposed by subtitles A or B, he is authorized to send notice of such deficiency to the taxpayer by registered mail.” “§ 6213. Restrictions applicable to deficiencies; petition to Tax Court “(a) Time for filing petition and restriction on assessment. — Within 90 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 deficiency authorized 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 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. Notwithstanding 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.” “§ 7502. Timely mailing treated as timely fi”

quoted by 2 later decisions, including Rich v. Commissioner, Albert G. Rich v. Commissioner of Internal Revenue

““By explicit language of the statute the right conferred on the taxpayer to petition for a redetermination of a deficiency is subject to the condition that such petition be filed with the Board of Tax Appeals within the time prescribed; and, if the taxpayer does not file such petition with the Board of Tax Appeals within the time prescribed, that Board is required to assess the • deficiency, notice of which has been mailed to the taxpayer. Those provisions negative the conclusion that the Board of Tax Appeals has the right or power to consider a petition for a redetermination of a deficiency where such petition is filed with it after the expiration of the prescribed period.””

quoted by 1 later decision, including Stebbins' Estate v. Helvering

Applies 26 U.S.C. § 272 · 26 U.S.C. § 613

Relies on United States v. Angeline Lombardo · Lewis-Hall Iron Works v. Blair · The Executors and Heirs of Augustin De Yturbide Deceased v. The United States

Good law ✅— No negative treatment on recordhow we know

Decided 1936-03-07

How this case has been cited

Cited by 47 later decisions — most recently October 1990 · most notably Charlson Realty Co. v. United States (1967), Stebbins' Estate v. Helvering (1941)

31 federal appellate · 4 state decisions

2801936194019501960197019801990decided

Later decisions citing this case, by decade. The current decade is in progress, and our corpus holds fewer opinions from the most recent years, so the latest bars are undercounted — not a real decline.

View the full empirical analysis of this case →

¶1Austin F. Anderson, of Fort Worth, Tex., for petitioners.

¶2Norman D. Keller and Sewall Key, Sp. Assts. to the Atty. Gen., Frank J. Wide-man, Asst. Atty. Gen., and Arthur L. Jacobs, Atty., Robert H. Jackson, Asst. Gen. Counsel, Bureau of Internal Revenue, and Isador Graff, Sp. Atty., Bureau of Internal Revenue, all of Washington, D. C., for respondent.

¶3Before FOSTER, SIBLEY, and WALKER, Circuit Judges.

¶4WALKER, Circuit Judge.

¶5In each of these cases the Board of Tax Appeals sustained a motion of the respondent to dismiss the taxpayer’s petition to the Board for a redefennination of a deficiency determined by the Commissioner with respect to the petitioner’s income tax liability for the year 1929, on the ground that the petition was not filed with the Board within the 90-day period prescribed by statute. On October 23, 1934, respondent mailed to the petitioner in each of the cases a notice of a stated deficiency. On January 19, 1935, petitions for redetermination of the asserted deficiencies were deposited in the United States Post Office at Forth Worth, Tex., as registered air mail, addressed to the United States Board of Tax Appeals at Washington, D. C. The petitions were received and filed by the Board of Tax Appeals on January 23, 1935, the ninety-second day after the deficiency notices were mailed. On the hearing of the motions to dismiss, the petitioners introduced evidence which showed that under the scheduled air mail service the petitions would have been, delivered to the Board on January 21, 1935, the ninetieth day after the mailing of the deficiency notices, and that the delay of delivery beyond the ninetieth day was due to adverse weather conditions.

¶6Section 272 (a, c) of the Revenue Act of 1928, (45 Stat. 791), authorized the Commissioner to send notices of deficiencies to the taxpayer by registered mail, and provided:

¶7“Within 60 days after such notice is mailed (not counting Sunday as the sixtieth day), the taxpayer may file a petition with the Board of Tax Appeals for a re-determination of the deficiency.” 26 U.S« C.A. § 272 (a) note.

¶8*522“(c) Failure to file petition. If the taxpayer does not file a petition with the Board within the time prescribed in subsection (a) of this section, the deficiency, notice of which has been mailed to the taxpayer, shall be assessed, and shall be paid upon notice and demand from the collector.” 26 U.S.C.A. § 272 (c) and note.

¶9By section 501 of the Revenue Act of 1934 (48 Stat. 680, 755), section 272 (a) of the Revenue Act of 1928 was amended “by striking out ‘60 days’ and inserting in lieu thereof ‘90 days’; by striking out ‘not counting Sunday as the sixtieth day’ and inserting in lieu thereof ‘not counting Sunday or a legal holiday in the District of Columbia as the ninetieth day’; and by striking out ‘60-day’ and. inserting in lieu thereof ‘90-day.’ ” By explicit language of the statute the right conferred on the taxpayer to petition for a redetermination of .a deficiency is subject to the condition that such petition be filed with the Board of Tax Appeals within the time prescribed; and, if the taxpayer does not file such petition with the Board qf Tax Appeals within the time prescribed, that Board is required to assess the deficiency, notice of which has been mailed to the taxpayer. Those provisions negative the conclusion that the Board of Tax Appeals has the right or power to consider a petition for a redetermination of a deficiency where such petition is filed with it after the expiration of the prescribed period. Chambers y. Lucas, 59 App.D.C, 327, 41 F.(2d) 299; Lewis-Hall Iron Works v. Blair, 57 App. D.C. 364, 23 F.(2d) 972. It well may be inferred that, in enlarging the time for filing petitions for redetermination of deficiencies, the lawmakers had in mind reasonably to be expected delays in the transmission of papers by mail or other methods of conveyance. It seems that the petitioners made no allowance for a failure of mail to move strictly according to schedule. A paper is filed when it is delivered to the proper official and by him received to be kept on file. Depositing a paper in the post office in time for it to reach the 3)oard of Tax Appeals in the usual course of mail within the time allowed is not a ■filing of the paper with the Board. United States v. Lombardo, 241 U.S. 73, 36 S.Ct. 508, 60 L.Ed. 897. The Board was without power to dispense on equitable grounds with the requirement of filing within the 'time allowed. Yturbide’s Executors v. United States, 22 Flow. 290, 16 L.Ed. 342. See, also, Muckelroy v. Baldwin (C.C.A.) 70 F.(2d) 728.

¶10In support of the contention that the petitions for redetermination were filed within the time allowed, counsel for petitioners call attention to the following statutory provision: “The mailing by registered mail of any pleading, decision, order, notice, or process in respect of proceedings before the Board shall be held sufficient service of such pleading, decision, order, notice, or process.” 45 Stat. 872, § 601, 26 U.S.C.A. § 613.

¶11The just set out provision does not purport to deal with the matter of a taxpayer filing with the Board of Tax Appeals a petition for redetermination of a tax deficiency determined by the Commissioner or to supersede or affect any statutory provision dealing with that subject.

¶12It was open to the petitioners to test the correctness of the deficiencies required to be assesesd upon their failure to file with the Board of Tax Appeals petitions for redetermination within the time prescribed, by paying the amounts assessed and suing for refunds thereof. Section 322 (a, c) of Revenue Act of 1928, 45 Stat. 791, 26 U.S. C.A. § 322 and note.

¶13The petitions are denied.

/81/f2d/521 · .json · Public domain