Bonwit Teller & Co. v. Commissioner

Board of Tax Appeals

Bonwit Teller & Co. v. Commissioner

10 B.T.A. 1300, 1928 BTA LEXIS 3906

CourtUnited States Board of Tax Appeals

DecidedMarch 12, 1928

DocketDocket No. 26037.

StatusPublished

Cited by21 cases

This text of 10 B.T.A. 1300 (Bonwit Teller & Co. v. Commissioner) is published on Counsel Stack Legal Research, covering United States Board of Tax Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Bonwit Teller & Co. v. Commissioner, 10 B.T.A. 1300, 1928 BTA LEXIS 3906 (bta 1928).

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Opinions

[1301]*1301OPINION.

Aeundell:

Petitioner’s argument is, in brief, that upon filing its return in April, 1921, the statute of limitations began to run, and as more than four years has now elapsed since the filing date, the Commissioner is barred from assessment and collection. There can be no question that four years is the basic period for assessment or proceeding in court for collection without assessment. Section 250(d) of the Bevenue Act of 1921 and section 277 of the Bevenue Acts of 1924 and 1926. That period began to run with the filing of the return on April 12, 1921, and in the absence of some exception, would expire on April 12, 1925. The deficiency here was not de[1302]*1302termined until after the expiration of that statutory period, to wit, on February 10,1927, and it has not been assessed. Therefore, on the face of the pleadings, assessment and collection are barred.

The respondent, however, points to the exceptions to the running of the statute and argues that it is incumbent on the 'petitioner to show that these exceptions are not applicable. This raises the same question which wasv decided in Farmers Feed Co. v. Commissioner, 10 B. T. A., 1069, adversely to the contention of the respondent.

Save for one distinction, the facts in this case are on all fours with those in Fred T. Ley & Co. v. Commissioner, 9 B. T. A. 749. The one distinction is that in the Ley case it was stipulated that no portion of the deficiency determined resulted from any change or difference in the Revenue Act of 1921 from the Revenue Act of 1918. This feature of the case falis within the discussion in the Farmers Feed Co. case, in that it is one of the exceptions to the statutory period for assessment and collection, and the burden of showing that such exception is applicable is on the respondent.

The petitioner herein having made a prima facie showing which brings it within the statute of limitations and nothing having been shown by the respondent to place the case within any of the exceptions thereto, we must hold that assessment and collection are barred.

Reviewed by the Board.

Judgment of no deficiency will be entered for the fetitioner.

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[1301]*1301OPINION.

Aeundell:

Petitioner’s argument is, in brief, that upon filing its return in April, 1921, the statute of limitations began to run, and as more than four years has now elapsed since the filing date, the Commissioner is barred from assessment and collection. There can be no question that four years is the basic period for assessment or proceeding in court for collection without assessment. Section 250(d) of the Bevenue Act of 1921 and section 277 of the Bevenue Acts of 1924 and 1926. That period began to run with the filing of the return on April 12, 1921, and in the absence of some exception, would expire on April 12, 1925. The deficiency here was not de[1302]*1302termined until after the expiration of that statutory period, to wit, on February 10,1927, and it has not been assessed. Therefore, on the face of the pleadings, assessment and collection are barred.

The respondent, however, points to the exceptions to the running of the statute and argues that it is incumbent on the 'petitioner to show that these exceptions are not applicable. This raises the same question which wasv decided in Farmers Feed Co. v. Commissioner, 10 B. T. A., 1069, adversely to the contention of the respondent.

Save for one distinction, the facts in this case are on all fours with those in Fred T. Ley & Co. v. Commissioner, 9 B. T. A. 749. The one distinction is that in the Ley case it was stipulated that no portion of the deficiency determined resulted from any change or difference in the Revenue Act of 1921 from the Revenue Act of 1918. This feature of the case falis within the discussion in the Farmers Feed Co. case, in that it is one of the exceptions to the statutory period for assessment and collection, and the burden of showing that such exception is applicable is on the respondent.

The petitioner herein having made a prima facie showing which brings it within the statute of limitations and nothing having been shown by the respondent to place the case within any of the exceptions thereto, we must hold that assessment and collection are barred.

Reviewed by the Board.

Judgment of no deficiency will be entered for the fetitioner.

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10 B.T.A. 1300, 1928 BTA LEXIS 3906, Counsel Stack Legal Research, https://law.counselstack.com/opinion/bonwit-teller-co-v-commissioner-bta-1928.

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