1. Although the Revenue Act of 1918 was not approved until
February 24, 1919, § 241(a) required that returns on the basis of
the calendar year be made on or before March 15, and § 239 required
that a corporation's return should state specifically the items of
its gross income and deductions and credits. In order to allow
corporations extended time to prepare their returns under § 239,
and in order to avoid the postponement of initial payments of tax
that would have resulted under § 250(a) if extensions were granted
unconditionally, the Commissioner of Internal Revenue devised a
plan whereby extensions of time to file the return required by the
Act were granted to corporations only on condition that, on or
before March 15, they send to the Collector one-fourth of their
estimated tax with an instrument executed under oath, containing
only a statement that one-fourth of the estimated tax was remitted
therewith and that, for reasons set forth, an extension of time to
file the "complete return" was requested. The form provided by the
Commissioner for this purpose was entitled "Tentative Return of
Corporation Income and Profits Taxes and Request for Extension of
Time for Filing Return."
Held: that this so-called "tentative return" was not
the return within the meaning of §§ 250(d) of the Revenue Act of
1921, limiting the time within which taxes under the Act of 1918
might be determined and assessed to five years after the return was
filed, etc., and that the filing of such "tentative return" did not
start that period of limitation. P.
280 U. S.
456.
2. A waiver executed by the Commissioner and a taxpayer pursuant
to § 250(d) of the Revenue Act of 1921, consenting to a
determination, assessment, and collection of income taxes under
the
Page 280 U. S. 454
Act of 1918, and to be in effect for one year after the
expiration of the statutory period of limitation, was not a
contract preventing Congress from extending the statutory period
for the collection of such taxes by legislation enacted before that
period as extended by the waiver has expired. P.
280 U. S.
465.
3. Income taxes assessed within the statutory period, as
extended by waiver, and after the enactment of the Revenue Act of
1924, the collection of which had not been previously barred, could
be collected pursuant to §§ 278(d) of that Act at any time within
six years of the assessment. P.
280 U. S.
467.
4. Income taxes assessed at any time within the statutory
period, as extended by waiver, and the collection of which was not
barred on the enactment of the Revenue Act of 1926, could be
collected under § 278(d) of that Act within six years of the
assessment.
Id.
29 F.2d 895 affirmed; 33 F.2d 739 reversed.
Certiorari,
post, pp. 539, 547, to review judgments of
circuit courts of appeals in actions to recover amounts assessed
and collected as income and excess profits taxes. In No. 118, the
action was brought in Louisiana against the United States, and the
judgment of the district court, 26 F.2d 505, for the defendant was
affirmed by the circuit court of appeals. The other case was an
action against the Collector in Massachusetts. The judgment of the
district court, 28 F.2d 54, was for the plaintiff, and was affirmed
by the circuit court of appeals.
Page 280 U. S. 455
MR. JUSTICE BRANDEIS delivered the opinion of the Court.
These cases, which were argued together, present the same
questions. In each case, the taxpayer seeks to recover with
interest an amount assessed and collected, after March 15, 1925, as
an additional income and excess profits tax for 1918 under the
Revenue Act of 1918. In each, the claim is that both the assessment
and the collection were made after the expiration of the time
allowed therefor. In a long line of cases arising out of similar
facts, the Board of Tax Appeals has held consistently that neither
the assessment nor the collection was made too late. [
Footnote 1] In No. 414, the action was
brought in the federal court for Massachusetts against the
collector to recover $39,043.99. The district court, without
passing on the timeliness of the assessment, held that the
collection was barred and entered judgment for the plaintiff, 28
F.2d 54. The Circuit Court of Appeals for the First Circuit
affirmed the judgment on the ground that the assessment was barred,
and expressed no opinion on the question decided by the district
court, 33 F.2d 739. In No. 118, the action was brought in the
federal court for western Louisiana against the United States to
recover $11,282.15.
Page 280 U. S. 456
That court, deciding both questions in favor of the government,
entered a judgment for the defendant, 26 F.2d 505, which was
affirmed, on both grounds, by the Circuit Court of Appeals for the
Fifth Circuit, 29 F.2d 895. In other federal courts, also, there
has been diversity of opinion. [
Footnote 2] This Court granted writs of certiorari.
First. Whether the assessment was barred depends upon
whether the period of limitation was started by the filing before
March 15, 1919, of a so-called "tentative return," or by the later
filing of a so-called "completed return." The question arises in
this way: the Revenue Act of 1918 was not approved until February
24, 1919, c. 18, 40 Stat. 1057. Section 241(a) required that
returns on the basis of the calendar year should be made on or
before the 15th day of March. Section 239 required that a
corporation's return should state "specifically the items of its
gross income and the deductions and credits allowed." The form of
return prescribed by the Commissioner of Internal Revenue for
giving this information, known as Form 1120, is an elaborate
document composed of a "summary" in four schedules, with eleven
supporting schedules and twenty-six subschedules. The "summary"
calls for the specification of some 93 items. The supporting
schedules and subschedules call for the specification of some 357
items, and of as many more items to be stated in appendices as the
circumstances of the particular taxpayers might require. [
Footnote 3]
Page 280 U. S. 457
It was obvious that many corporations would be unable, in the
short interval between February 24 and March 15, to prepare their
returns in time. Sections 227(a) and 241(a) authorized the
Commissioner to "grant a reasonable extension of time for filing
returns whenever in his judgment good cause exists." But § 250(a)
provided that,
"where an extension of time for filing a return is granted, the
time for payment of the first installment shall be postponed until
the date of the expiration of the period of the extension."
The necessities of the government made it undesirable that
payments on account of the first installment of taxes be postponed.
To meet this situation, the following policy was announced in a
public statement issued by the Commissioner:
"Although no general extension of time will be authorized for
filing the Federal Income Tax returns due March 15, the
Commissioner of Internal Revenue has approved a novel feature of
tax collection which will serve for all practical purposes as a
possible extension of forty-five days for the filing of corporation
income and excess profits tax returns. . . . If a corporation finds
that . . . it is impossible to complete its return by March 15, it
may make a return of the estimated tax due and make payment thereof
not later than March 15. If meritorious reason is shown,"
the completed return could be filed within forty-five days
Page 280 U. S. 458
after that date. The statement continued:
"Provision for systematically handling this new feature will be
made in the construction of the new return blanks . . . , embodied
in which is a detachable letter of remittance. Any corporation
which finds that, for sufficient reasons, it cannot complete its
return by March 15, may detach and fill out the letter of
remittance, and forward same to the collector on or before March
15, together with a check . . . for the tax due on that date. . . .
A statement in writing of the reasons why it is impossible for the
corporation to complete the return by the specified date must
accompany every such remittance. [
Footnote 4]"
The device was modified by a further statement on February 27,
1919. A separate blank, known as Form 1031T and entitled "Tentative
Return and Estimate of Corporation Income and Profits Taxes and
Request for Extension of Time for Filing Return," was to be used
instead of the detachable letter of remittance. This blank was in
the form of a letter to the collector, and contained, besides
instructions and the oath of the president and treasurer, only a
statement that one-fourth of the estimated amount of taxes was
remitted therewith, and that an extension of time to file the
complete return was requested for the reasons stated.
Each corporation executed the tentative return, Form 1031T, and
sent it, with a remittance of one-quarter of the estimated tax, to
the collector on or before March 15, 1919. The Florsheim Company
filed its complete return,
Page 280 U. S. 459
Form 1120, on June 16, 1919; the Hood Company, on July 14, 1919.
Section 250(d) of the Revenue Act of 1918 provided that
"the amount of tax due under any return shall be determined and
assessed by the Commissioner within five years after the return was
due or was made. . . ."
This period was extended under the Revenue Act of 1921, November
23, 1921, c. 136, § 250(d), 42 Stat. 227, 265-266, which provided
that the amount of the tax under the 1918 Act should be
"determined and assessed within five years after the return was
filed, unless both the Commissioner and the taxpayer consent in
writing to a later determination, assessment, and collection of the
tax. [
Footnote 5]"
In each of the cases at bar, the Commissioner and the taxpayers
executed, prior to March 15, 1924, an instrument called "Income and
Profits Tax Waiver." The waivers stated that, "[i]n pursuance of
the provisions of subdivision (d) of § 250 of the revenue act of
1921," the Commissioner and the taxpayer
"consent to a determination, assessment, and collection of the
amount of income, excess profits, or war-profits taxes due under
any return made. . . . This waiver is in effect from the date it is
signed by the taxpayer, and will remain in effect for a period of
one year after the expiration of the statutory period of
limitation. . . ."
In each case, the assessment was made more than six years after
March 15, 1919, but within six years after the filing of the
completed return on Form 1120. If Form 1031T was "the return"
within the meaning of the above provisions as to limitation, then
the assessments were made too late.
We are of opinion that the filing of the document known as Form
1031T, duly executed, did not start the running
Page 280 U. S. 460
of the period of limitation. Form 1031T is not an instrument
expressly provided for in the Act. It is not in the nature of a
"list," "schedule," or "return," commonly required by tax statutes.
It was an invention of the Commissioner designed to meet a peculiar
exigency. Its purpose was to secure to the taxpayer a needed
extension of time for filing the required return, without defeating
the government's right to prompt payment of the first installment.
As Form 1031T made no reference to income, or to deductions or
credits, it could not have been intended as the return "stating
specifically the items of . . . gross income, and the deductions
and credits" -- the return required to satisfy the statute.
Section 3182 of the Revised Statutes, U.S.C. Tit. 26, § 102,
provides that the Commissioner shall "make the inquiries,
determinations, and assessments of all taxes . . . and shall
certify a list of such assessments . . . to the proper collectors."
Section 250(b) of the 1918 Act required that,
"as soon as practicable after the return is filed, the
Commissioner shall examine it. If it then appears that the correct
amount of the tax is greater or less than that shown in the return,
the installments shall be recomputed."
It was to serve these purposes that § 239 required all
corporations to make returns "stating specifically the items of . .
. gross income and the deductions and credits." The burden of
supplying by the return the information on which assessments were
to be based was thus imposed upon the taxpayer. And, in providing
that the period of limitation should begin on the date when the
return was filed, rather than when it was due, the statute plainly
manifested a purpose that the period was to commence only when the
taxpayer had supplied this information in the prescribed manner.
Form 1120 provided for furnishing the data which would enable the
Commissioner to make a determination, assessment, and
recomputation. Form 1031T furnished no data which
Page 280 U. S. 461
could in any way aid him in that connection. It is true that
even the complete return on Form 1120 need not be accepted by the
Commissioner as the sole basis for the determination of the amount
of the tax. Assessments are frequently based on audits of the
Income Tax Unit. However, the purpose of these audits is not to
eliminate the necessity of filing the return, but to safeguard
against error or dishonesty.
The corporations concede that § 239 defined the nature of the
return required and referred to in the several provisions of the
Act, and that Form 1031T did not comply with that section; but, in
support of their contention that the tentative return, Form 1031T,
started the running of the period of limitation, they present the
following arguments. They urge that the sufficiency of a return for
the purpose of starting the period of limitations does not depend
upon a strict compliance with the requirements of § 239; that the
Act required but one return, that Form 1031T was a formal document
prescribed by the Commissioner, called a "return" and so termed on
its face, and that the complete return should therefore be treated
as an amendment or completion of the tentative return; that Form
1031T was a sufficient return to start the period of limitation,
because it was sufficient to prevent the extension of time for the
payment of the first installment of the tax pursuant to § 250(a);
because it was a sufficient return under § 250(e) to constitute
notice and demand for the payment of the first installment; because
it was a sufficient return to form the basis of an assessment,
which, under the law, must be based on a return; and because it was
a sufficient return to subject taxpayers to the penalties provided
by § 3176 of the Revised Statutes and § 253 of the Act for failure
to file it on time.
These arguments ignore the differences in nature and purpose
between Form 1031T and the return required by
Page 280 U. S. 462
the Act. The mere fact that Form 1031T was a formal document
prescribed by the Commissioner and termed a "return" does not
identify it as the return required by the Act. The word "return" is
not a technical word of art. It may be true that the filing of a
return which is defective or incomplete under § 239 is sufficient
to start the running of the period of limitation, and that the
filing of an amended return does not toll the period. [
Footnote 6] But the defective or
incomplete return purports to be a specific statement of the items
of income, deductions, and credits in compliance with § 239. And,
to have that effect, it must honestly and reasonably be intended as
such. There is not a pretense of such purpose with respect to Form
1031T. Nor is it the purpose of Form 1120 to supply or correct
something omitted or misstated in Form 1031T. The latter was
neither defective nor incomplete. The extension of time for the
payment of the first installment was prevented not because Form
1031T was considered a return in compliance with the statute, but
because the Commissioner exacted payment as a condition for the
requested extension of time to file the return. The penalties were
to be imposed for the failure to file, or the late filing, of the
detailed return above described. And the penalties were avoided not
by the filing of Form 1031T as a substantial compliance with the
requirement of a return, but, as expressly stated in that form, by
the extension of time to file which was granted
"in consideration of the filing of this tentative return and the
payment of not less than one-fourth of the estimated amount of the
tax, and for the reasons stated."
Obviously, without the payment of the first installment
Page 280 U. S. 463
and the consequent grant of an extension of time, the mere
filing of Form 1031T would not have avoided the penalties
prescribed for the late filing of the return required by the Act.
[
Footnote 7] Nor would the
penalties have been avoided by the filing of that form if the
complete return were not filed within the extended time.
The contention that, because Form 1031T was sufficient as a
notice and demand under § 250(e), it was a sufficient return to
start the period of limitation, is equally unsound. That section
did not prescribe the exclusive mode for the notice and demand for
payment of the first installment. Any instrument containing the
notice and demand would be as efficacious for that purpose as the
return required by the statute. Finally, the argument that Form
1031T was a sufficient return to furnish the basis for assessment
lacks significance, whether or not it is sound. [
Footnote 8] The Commissioner is not confined
to the taxpayer's return for the basis of his assessment. He may
secure additional information, and he may assess the tax even if
the taxpayer files no return. Rev.Stat. § 3176,
Page 280 U. S. 464
U.S.C. Tit. 26, § 97; Revenue Act 1918, § 250(c), 40 Stat. 1083.
The mere fact that, in the absence of any information, the
Commissioner might be compelled to assess the tax on the basis of
the taxpayer's estimate does not transform that simple estimate of
the amount of the tax into the detailed return of the items of
gross income, deductions, and credits required by the Act. Form
1031T was only a formal substitute for the simple letter originally
planned, remitting payment and requesting an extension. That it was
called "Tentative Return" is of no significance. It was termed also
"Estimate of Corporation Income And Profits Taxes And Request For
Extension of Time For Filing Return."
It has been said that the government is assuming an inconsistent
and unconscionable attitude. But there is nothing inconsistent or
unconscionable in its position. The Commissioner did not represent
that the date of filing Form 1031T would be treated as the
beginning of the period of limitation. And it is not clear that he
had the power to shorten the period prescribed by the statute. The
government has not treated Form 1031T for any purpose as the return
required by the Act. The tentative return was confessedly a novel
device. It imposed no hardship on taxpayers. Indeed, it enabled
them to save the interest charge which otherwise would have
attended an extension of time to file the return and pay the first
installment. Notice of the Commissioner's intention to assess
deficiencies in stated amounts was given to the corporations much
before March 15, 1925. The delay in the assessments past that date
was due to negotiations with the Commissioner which resulted in the
reduction of those amounts to less than half in the one case and to
about one-sixth in the other. The corporations are in no position
to complain of the government's action.
Second. The claim that, even if the assessment was
timely, the collection was barred depends upon the effect
Page 280 U. S. 465
of the "Income and Profits Tax Waiver," and the applicability of
the Revenue Acts of 1924 and 1926. As previously stated, both
corporations and the Commissioner executed this instrument pursuant
to § 250(d) of the 1921 Act, prior to March 15, 1924, and consented
to the determination, assessment, and collection of the tax, "this
waiver" to be in effect for one year after the expiration of the
statutory period of limitation. Under the 1921 Act, § 250(d), this
period was five years after the return was filed. The Revenue Acts
of 1924 and 1926 extended the period for collection to six years
after the date of assessment; June 2, 1924, c. 234, § 278(d), 43
Stat. 253, 300; Feb. 26, 1926, c. 27, § 278(d), 44 Stat. 9, 59. In
both cases, proceedings for collection of the tax were begun more
than six years after either the tentative or the complete returns
were filed, but less than six years after the assessments were
made. In the Florsheim case, collection was effected in 1925; in
the Hood case, in 1926, after the passage of the 1926 Act.
The government contends that the "Income and Profits Tax
Waivers" executed by the corporations were waivers by them of the
statutory period for another year; that, while these waivers were
still in force and while the corporations' liability was thus still
alive, the Revenue Acts of 1924 and 1926 were passed, increasing
the period for collection to six years after assessment; that these
Acts are applicable to the cases at bar, and that, since the
collections were made within six years after the assessments, they
were timely made. The corporations insist that the "waivers" were
not merely waivers extending the statutory period, but were binding
contracts which limited the time in which the Commissioner could
assess and collect the taxes, and that no change in the law made
after the date of the contracts and enlarging the time for
collection can affect their rights. They urge that the 1924 and
1926 Acts did not purport to extend the
Page 280 U. S. 466
periods thus limited by contract, and that, if construed as
extending such periods, the provisions of these Acts are
unconstitutional. They concede that, in the absence of contract, a
legislature may constitutionally lengthen or shorten the period in
which a right may be enforced by legal proceedings.
We are of opinion that the contention of the government must
prevail. The waivers executed by the parties were not contracts
binding the Commissioner not to make the assessments and
collections after the periods specified. At the time when the
waivers were executed, the Commissioner was without power under the
statute to assess or collect the taxes after the statutory period,
as extended by the waivers. A promise by the Commissioner not to do
what by the statute he was precluded from doing would have been of
no significance. The waivers do not purport to contain such a
promise.
Bank of Commerce v. Rose, 26 F.2d
365, 366;
Greylock Mills v. Commissioner, 31 F.2d 655,
657. And obviously, the Commissioner did not undertake to limit the
power of Congress to extend the period of limitations, as
consideration for the waivers. The instruments were nothing more
than what they were termed on their face -- waivers -- and that was
all to which the Commissioner was authorized to consent.
Stress is laid on the use of the words "agree" and "agreement"
in the Acts and regulations. But these are ordinary words having no
technical significance. It is also urged that, unless a contract
was intended, there is no reason why the consent of the
Commissioner should have been required. But an otherwise plain
meaning should not be distorted merely for the sake of finding a
purpose for this administrative requirement. If a reason must be
found, it exists in the general desirability of the requirement as
an administrative matter. It serves to keep the Commissioner in
closer touch with the matters which he
Page 280 U. S. 467
is charged to administer. It avoids claims of improvident
execution of waivers and unauthorized exactions by subordinates of
the Department for the purpose of curing their own delinquencies.
And it provides a formal procedure which is generally desirable for
the Commissioner, collectors, and subordinates in the Department.
That other means might have been devised for the same purpose is of
no significance.
The question as to the applicability of the later Acts may be
briefly disposed of. Section 1100 of the Revenue Act of 1924
repealed the 1921 Act. Section 277(a)(2) of the 1924 Act [
Footnote 9] expressly dealt with taxes
due under the Acts of 1918 and 1921, and it reenacted the five-year
limitation with the express qualification, "Except as provided in §
278." Section 278(c) [
Footnote
10] reenacted the provision as to extension of time by the
consent of the Commissioner and the taxpayer, and constituted the
sole statutory authority for the waiver of the period of limitation
for taxes due under the 1918 and 1921 Acts. It unquestionably
applied to waivers thereafter to be executed, and no reason appears
why it did not equally apply to waivers executed prior to the
passage of the Act. Section 278(d) [
Footnote 11] prescribed the period of limitation for the
collection of taxes applicable to all cases enumerated in that
section and § 277, which expressly included taxes under the Act of
1918. The situations intended to be excluded from the limitations
prescribed were carefully specified in § 278(e) [
Footnote 12]: (1) Assessments
Page 280 U. S. 468
or collections already barred before the passage of that Act and
(2) assessments made and proceedings begun prior to that time.
Neither of the cases at bar falls within those exceptions. Since,
in both cases, assessment and collection were not barred on the
enactment of the 1924 Act, and were made after that date, the
section is applicable.
Compare Russell v. United States,
278 U. S. 181.
It is urged that this construction of the Acts causes
discrimination against taxpayers who obligingly consented to
additional time for assessment and collection, and in favor of
those who obdurately refused such consent or whose returns were not
audited, prior to the bar of the statute, for the purpose of
assessing deficiencies. That taxpayers whose returns led to no
suspicion of inaccuracy prior to the expiration of the statutory
period are in a preferable position is due not to any unjust
discrimination contained in the 1924 or 1926 Acts, but to the
quality of their returns and to propitious circumstances. For the
disobliging taxpayers, the Acts provided an alternative remedy in
the so-called jeopardy assessment and demand; 1924, § 274(d), 43
Stat. 297; 1926, § 279, 44 Stat. 59. It is urged also that the
government may not properly and consistently accept the consent
contained in the "waivers" and not be bound by the limitation. But
the limitation was only on the corporations' consent, and the
government was bound thereby. The instruments contained nothing,
however, which could restrict the government's power to enlarge the
statutory provisions as to limitation. The timeliness of the
collection is based not upon the waivers, but upon the
statutes.
No. 118, affirmed.
No. 414, reversed.
[
Footnote 1]
Appeal of Dallas Brass & Copper Co., 3 B.T.A. 856, 863;
Appeal of Boston Hide & Leather Co., 5 B.T.A. 617; Pilliod
Lumber Co. v. Commissioner, 7 B.T.A. 591, 593; Corona Coal &
Coke Co. v. Commissioner, 11 B.T.A. 240; Ramsey v. Commissioner, 11
B.T.A. 345; Floyd v. Commissioner, 11 B.T.A. 903, 905; David
Rodefer Oil Co. v. Commissioner, 11 B.T.A. 782; L. Loewy & Son,
Inc. v. Commissioner, 11 B.T.A. 596; Peck, Stow & Wilcox Co. v.
Commissioner, 12 B.T.A. 569; Lamborn v. Commissioner, 13 B.T.A.
177, 189; Kaufman v. Commissioner, 14 B.T.A. 602.
[
Footnote 2]
In Brandon Corp. v. Jones, 33 F.2d 969, it was held
that both assessment and collection were barred.
And see
Rasmussen v. Brownfield-Canty Carpet Co., 31 F.2d 89. In the
following cases, it was held that collection was not barred; the
timeliness of the assessment was not questioned:
Bank of
Commerce v. Rose, 26 F.2d
365;
Loewer Realty Co. v. Anderson, 31 F.2d 268;
L. Loewy & Son, Inc. v. Commissioner, 31 F.2d 652
(C.C.A. 2nd).
[
Footnote 3]
The form described is known as Form 1120, "Corporation Income
and Profits Tax Return For Calendar Year 1918," and is a combined
return of income, excess profits and war-profits under the Revenue
Act of 1918. Statutes imposing direct taxes have always required
taxpayers to file "lists" or "schedules" or "statements" or
"returns" specifying in detail the information requisite for an
assessment of the tax. The word "return" has not always been used.
Sometimes it has been used as a synonym for "list," "schedule," or
"statement." The specification in the statutes of the prescribed
contents of such lists or returns has varied in its detail. But
always definite statements of facts were required from which the
tax could be computed. Act of July 9, 1798, c. 70, § 9, 1 Stat.
580, 585, 586; Act of July 1, 1862, c. 119, §§ 6, 93, 12 Stat. 432,
434 475; Act of June 30, 1864, c. 173, §§ 11, 82, 98, 102, 109,
etc., 13 Stat. 223, 225, 258-286; Act of August 5, 1909, c. 6, §
38, 36 Stat. 11, 114; Rev.St. § 3173, U.S.C. Tit. 26, § 93.
[
Footnote 4]
This action was taken pursuant to § 1309 (40 Stat. 1143), which
authorized the Commissioner, with the approval of the Secretary,
"to make all needful rules and regulations for the enforcement of
the provisions of this Act." These public letters from the
Commissioner to the Collectors "and others concerned" were issued
February 13, 1919; February 27, 1919.
See also letters of
April 14, 1919, October 3, 1919 and March 17, 1920, and Manual
(1920) for the information and guidance of Collectors, §§ 627,
628.
[
Footnote 5]
This period of limitation on assessments of taxes under the 1918
Act was continued in the later Revenue Acts. June 2, 1924, c. 234,
§§ 277(a)(2), 278(c), 43 Stat. 253, 299, 300; February 26, 1926, c.
27, §§ 277(a), (3), 278(c), 44 Stat. 9, 58, 59.
[
Footnote 6]
See Appeal of National Refining Co., 1 B.T.A. 236;
Appeal of Mabel Elevator Co., 2 B.T.A. 517;
United States v.
National Refining Co., 21 F.2d 464;
United States v. Mabel
Elevator Co., 17 F.2d
109; Union P. R. Co. v. Bowers,
24 F.2d 788; National Tank
& Export Co. v. United States, 35 F.2d 381.
[
Footnote 7]
Attention is called to Article 407 of Internal Revenue
Regulations 45, which provided that:
"In lack of a prescribed form, a statement made by a taxpayer
disclosing his gross income and the deductions therefrom may be
accepted as a tentative return, and if filed within the prescribed
time, a return so made will relieve the taxpayer from liability to
penalties, provided that, without unnecessary delay, such a
tentative return is replaced by a return made on the proper
form."
But obviously Form 1031T was not a tentative return within the
meaning of this Article. It did not even purport to be a "statement
disclosing gross income and the deductions therefrom."
[
Footnote 8]
To sustain the argument that assessment could be made on the
basis of Form 1031T, counsel cited only Matteawan Mfg. Co. v.
Commissioner, 14 B.T.A. 789, and Lamborn v. Commissioner, 13 B.T.A.
177, 187. But it is not clear that, in either of these cases, the
assessment was in fact made on the basis of that form. In both
cases, there were other bases, and in both cases the Board of Tax
Appeals expressly refused to comment on the propriety of assessment
based on Form 1031T.
See Appeal of Matteawan Mfg. Co., 4
B.T.A. 953, 956.
[
Footnote 9]
§ 277(a)(3) of the 1926 Act.
[
Footnote 10]
§ 278(c) of the 1926 Act.
[
Footnote 11]
§ 278(d) of the 1926 Act.
[
Footnote 12]
§ 278(e) of the 1926 Act. This section eliminated the second
exception in § 278(e) of the 1924 Act, stated in the text. The fact
that, in the Hood Case, where collection was made after the
enactment of the 1926 Act, the assessment had been made previous to
that time is therefore immaterial.