1. In § 1141 of the Internal Revenue Code, relating to review of
decisions of the Tax Court, the terms "jurisdiction" and "venue"
have their usually accepted meaning. P.
323 U. S.
314.
2. By § 1141(a), all of the Circuit Courts of Appeals and the
United States Court of Appeals for the District of Columbia are
given jurisdiction to review decisions of the Tax Court -- that is,
power to act judicially upon a petition for review. P.
323 U. S.
314.
3. By § 1141(b)(1), one of the courts of appeals is designated
as the court of proper venue -- that is, the place where the
petition will be heard. P.
323 U. S. 314.
Page 323 U. S. 311
4. The objection that the petition is filed in the wrong
circuit, being one to venue, may be waived by the Government, and
this it did here by stipulating that the case be heard in the court
of appeals designated by the parties. P.
323 U. S.
314.
(a) The stipulation is not required to be filed within three
months of the decision of the Tax Court. P.
323 U. S.
314.
(b)
Nash-Breyer Motor Co. v. Burnet, 283 U.
S. 483, distinguished. P.
323 U. S.
315.
5. Petitioner filed a petition for review in the court below
within the three months' period allowed for that purpose by § 1142.
That court was not the court of proper venue under § 1141(b)(1).
More than three months after the decision of the Tax Court, the
parties made and filed a stipulation to have the case heard in the
court below.
Held, the court below, on filing of the
petition, had jurisdiction, and, on the filing of the stipulation,
was the court of proper venue. Dismissal of the petition for want
of jurisdiction was therefore improper . P.
323 U. S.
315.
141 F.2d 636 reversed.
Certiorari,
post, p. 690, to review a judgment
dismissing for want of jurisdiction a petition for review of a
decision of the Tax Court, 1 T.C. 378.
MR. CHIEF JUSTICE STONE delivered the opinion of the Court.
In this case, petitioner, deeming itself exempt from income and
excess profits taxes, failed to file any tax returns for the years
1932 to 1936, inclusive. The Commissioner assessed petitioner for
the taxes for those years, with penalties, and the Tax Court has
sustained the assessment as to the income taxes and attendant
penalties. Petitioner, within the three months allowed for that
purpose by § 1142 of the Internal Revenue Code, sought review of
the
Page 323 U. S. 312
Tax Court's decision by a petition for review filed with the
Court of Appeals for the Sixth Circuit.
By § 1141(a) of the Internal Revenue Code, entitled
"Jurisdiction," the Circuit Courts of Appeals and the Court of
Appeals for the District of Columbia are given "exclusive
jurisdiction to review the decisions" of the Tax Court. Subsection
(b)(1), entitled "Venue," provides that
"such decisions may be reviewed by the Circuit Court of Appeals
for the circuit in which is located the collector's office to which
was made the return of the tax in respect of which the liability
arises or, if no return was made, then by the United States Court
of Appeals for the District of Columbia."
Since petitioner filed no return, the Court of Appeals for the
District of Columbia was the court of proper venue under this
subsection. If petitioner had made a return, it would have been
required to file it with a collector whose office was within the
Sixth Circuit, that of the court below; in that event, that court
would have been the court of proper venue. The Code provides
further, in subsection (b)(2):
"Notwithstanding the provisions of paragraph 1, such decisions
may be reviewed by any circuit court of appeals . . . which may be
designated by the Commissioner and the taxpayer by stipulation in
writing."
The Commissioner suggested to petitioner that, as it had filed
no returns for the years in question and no written stipulation had
been entered into as permitted by subsection (b)(2), the Circuit
Court of Appeals for the Sixth Circuit was without "jurisdiction."
In response to this suggestion, petitioner and the Commissioner,
after the expiration of the three months' period in which a
petition for review could be filed, entered into such a written
stipulation, designating the Court the Appeals for the Sixth
Circuit as the court to review the decision of the Tax Court. The
stipulation reserved to the Commissioner the right to challenge its
timeliness and legal effect.
Page 323 U. S. 313
The Court of Appeals for the Sixth Circuit, on the
Commissioner's motion, dismissed the petition for review for want
of jurisdiction. 141 F.2d 636. We granted certiorari, 323 U.S. 690,
to resolve an asserted conflict of the decision below with that of
the Court of Appeals for the Fifth Circuit in
Wegener v.
Commissioner, 119 F.2d 49. The question presented is whether
the court below had jurisdiction of the petition for review of the
decision of the Tax Court, notwithstanding petitioner's failure to
file the stipulation during the three-month period within which
review of the Tax Court's decision could be sought.
The use in juxtaposition, in the statute, of the terms
"jurisdiction" and "venue" marks a significant distinction. On the
one hand, the statute confers power on the Circuit Courts of
Appeals generally to act judicially on petitions for review
presented to them -- which is "jurisdiction." On the other, such of
those courts as are specified by the statute, or the stipulation
which it authorizes, are designated as the place where, for
convenience of the courts or parties or both, the petition will be
heard -- which is "venue."
* Want of
jurisdiction, unlike want of venue, may not be cured by consent of
the parties; but when the court has jurisdiction, it has power to
decide the case brought before it even though the court having
venue is one sitting in another circuit.
General Investment Co.
v. Lake Shore R., 260 U. S. 261,
260 U. S.
272-273;
Burnrite Coal Co. v. Riggs,
274 U. S. 208,
274 U. S.
211-212;
General Electric Co. v. Marvel Co.,
287 U. S. 430,
287 U. S.
434-435;
Neirbo Co. v. Bethlehem Corp.,
308 U. S. 165,
308 U. S.
167-168;
Freeman v. Bee Machine Co.,
319 U. S. 448,
319 U. S. 453.
The right to have a cause heard in the court of the proper venue
may be lost unless seasonably asserted, and, in that event, the
court of
Page 323 U. S. 314
trial having jurisdiction, but not the proper venue, may render
a judgment binding on the parties.
General Investment Co. v.
Lake Shore R., supra,
260 U. S. 272;
Commercial Casualty Ins. Co. v.
Consolidated Stone Co., 278 U. S. 177,
278 U. S. 179;
Freeman v. Bee Machine Co., supra, 319 U. S. 453.
The government may waive objections to venue, just as any other
litigant may,
United States v. Hvoslef, 237 U. S.
1,
237 U. S. 12;
Thames & Mersey Ins. Co. v. United States,
237 U. S. 19,
237 U. S. 24-25;
Peoria & P.U. R. Co. v. United States, 263 U.
S. 528,
263 U. S.
535-536, and here such waiver, by stipulation, is
contemplated by § 1141(b)(2).
We have no reason to suppose that the terms "jurisdiction" and
"venue" were used in the statute in other than their usually
accepted meaning, and no convincing reason has been advanced why
that meaning should not be accepted here. Unless these plain terms
are to be disregarded, all the Circuit Courts of Appeals are given
jurisdiction to review decisions of the Tax Court upon a petition
for review -- that is, power to act judicially upon the petition.
Peoria & P.U. R. Co. v. United States, supra,
263 U. S.
535-536. Consequently, when, in this case, petitioner
filed its petition with the Court of Appeals for the Sixth Circuit,
that court did not lack power to proceed with the cause, although
the court of proper venue was the Court of Appeals for the District
of Columbia, as prescribed by § 1141(b)(1). The parties were free
to waive this defect of venue by filing the stipulation in
compliance with subsection (b)(2) designating the court below as
the one to act upon the petition, which was already before it and
of which it then had jurisdiction.
The government urges that the stipulation here did not comply
with § 1141(b)(2), since it was not filed within three months of
the decision of the Tax Court. But § 1141(b)(2) does not, by its
terms, place any time limitation upon the filing of the
stipulation. The government relies
Page 323 U. S. 315
on the three months limitation in § 1142, which is in terms
applicable only to the filing of the petition for review. The
petition here was filed within three months in a court having
jurisdiction, and we see no reason to import into the stipulation
provision, § 1141(b)(2), a time limitation which it does not
contain.
It is true, as the government argues, that dismissal, for want
of the proper venue, of a petition for review pending in a Court of
Appeals controls the jurisdiction of the court. But, in such a
case, jurisdiction is controlled only by terminating it. Here, the
case was not dismissed before want of venue was supplied by
stipulation in the manner authorized by the statute. This imposed
on the court the duty to exercise its jurisdiction in deciding the
case.
The government relies, as did the court below, on our decision
in
Nash-Breyer Motor Co. v. Burnet, 283 U.
S. 483. When that case arose, the provision in the
applicable Revenue Act for choice of venue by stipulation of the
parties did not permit them to stipulate for review in any circuit,
but limited their choice to two specified circuits. The parties in
that case stipulated for review of a decision of the Board of Tax
Appeals in a circuit not authorized by the statute, and thus did
not conform to the statutory venue requirement. We sustained the
action of the Court of Appeals in dismissing the petition for
review on the ground that the court was not bound to exercise its
jurisdiction where the proper venue was in another court, saying,
p.
283 U. S. 487:
"The restriction on the power of the parties to stipulate as to
venue would be meaningless if they could waive it without the
consent of the court." In this case, the stipulation conforms to
the statute, and is without the infirmity found to be fatal in the
Nash-Breyer case.
Here, the court acquired jurisdiction of the cause under the
statute by the timely filing of the petition for review, and the
parties were authorized by § 1141(b)(2) to stipulate
Page 323 U. S. 316
that the review should be had in that court. On filing the
stipulation. the cause was then pending in the court having venue,
as well as jurisdiction, and the case was improperly dismissed.
Reversed.
*
See Peoria & P.U. R. Co. v. United States,
263 U. S. 528,
263 U. S.
535-536, where this Court explained the same distinction
made in the Urgent Deficiencies Act, 38 Stat. 219, 28 U.S.C. §§
41(28), 43.