Ft. Pitt Spring & Mfg. Co. v. Commissioner

Board of Tax Appeals

Ft. Pitt Spring & Mfg. Co. v. Commissioner

5 B.T.A. 1106, 1927 BTA LEXIS 3676

CourtUnited States Board of Tax Appeals

DecidedJanuary 19, 1927

DocketDocket No. 10906.

StatusPublished

Cited by2 cases

This text of 5 B.T.A. 1106 (Ft. Pitt Spring & Mfg. 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.

Bluebook

Ft. Pitt Spring & Mfg. Co. v. Commissioner, 5 B.T.A. 1106, 1927 BTA LEXIS 3676 (bta 1927).

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Opinion

[1107]*1107OPINION.

Green:

The Commissioner has moved to dismiss this appeal on the ground that no deficiency has been determined against the petitioner [1108]*1108for the year 1920 within the meaning of section 278 of the Revenue Act of 1924, which defines a deficiency as follows:

Sec. 273. As used in this title the term “ deficiency ” means—

(1) The amount by which the tax imposed by this title exceeds the amount shown as the tax by the taxjjayer upon his return; but the amount so shown on the return shall first be increased by the amounts previously assessed (or collected without assessment) as a deficiency, and decreased by the amounts previously abated, credited, refunded, or otherwise repaid in respect of such tax; or

(2) If no amount is shown as the tax by the taxpayer upon his return, or if no return is made by the taxpayer, then the amount by which the tax exceeds the amounts previously assessed (or collected without assessment) as a deficiency; but such amounts previously assessed, or collected without assessment, shall first be decreased by the amounts previously abated, credited, refunded, or otherwise repaid in respect of such tax.

The Commissioner has taken the position that the tax shown by the petitioner on its return is $64,114.37, and that a denial in part of a claim for the abatement of $13,267.65 of that amount, no amounts having been “previously assessed (or collected without assessment) as a deficiency ” nor “ abated, credited, refunded, or otherwise repaid in respect of such tax,” is not the determination of a deficiency within the meaning of section 273 quoted above. It is the contention of the petitioner, however, that since the return was accompanied by a request for relief under section 328, $64,114.37 was not the amount shown on its return as the tax, within the meaning of our decision in the Appeal of John Moir, 3 B. T. A. 21, wherein we held the starting point in the computation of a deficiency to be the amount admitted on the return as the tax, and that denial in part of the claim in abatement is the determination of a deficiency within the meaning of section 273. The petitioner also relies upon our decision in the Appeal of Continental Accounting & Audit Co., 2 B. T. A. 761.

Without passing on the question as to whether or not an application for special assessment filed with a return is such a protest as denies the petitioner’s liability for the tax or a part of the tax shown on the return, in effect like the protest in Appeal of Continental Accounting & Audit Co., supra, we are of the opinion that, even though we assume in this case that the application for special assessment was such protest, the Commissioner has not determined a deficiency. At the most, the petitioner’s application for special assessment was a denial only of that part of the tax shown in the computation on its return as would be eliminated by computation of the tax under the provision of section 328. The conclusion that such was the petitioner’s position at the time of filing the return is supported by statements appearing in the claim for abatement subsequently filed, wherein the abatement of $13,267.65 was claimed until the decision of the Commissioner on the application for special [1109]*1109assessment should “enable the amount of said tax to be accurately determined.”

The petitioner does not now claim that the Commissioner erred in applying the provisions of section 328, and unless the tax has otherwise been increased by the determination of the Commissioner, there is no ground for claiming that a deficiency has been determined. In this respect, the facts show that the tax has been decreased. In its return the petitioner admitted its tax to be the tax properly computed on a net income of $165,508.12, whereas the Commissioner has determined the correct tax to be an amount resulting from a computation, using the same rates, on a net income of $160,317.88. In other words, the Commissioner has determined the correct amount of the tax to be less than the tax admitted to be due by the petitioner on its return, which clearly distinguishes this case from the Appeal of Continental Accounting & Audit Co., supra, and Appeal of John, Moir, supra.

Since no deficiency has been determined, the Board is without jurisdiction, and the appeal is

Dismissed.

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[1107]*1107OPINION.

Green:

The Commissioner has moved to dismiss this appeal on the ground that no deficiency has been determined against the petitioner [1108]*1108for the year 1920 within the meaning of section 278 of the Revenue Act of 1924, which defines a deficiency as follows:

Sec. 273. As used in this title the term “ deficiency ” means—

(1) The amount by which the tax imposed by this title exceeds the amount shown as the tax by the taxjjayer upon his return; but the amount so shown on the return shall first be increased by the amounts previously assessed (or collected without assessment) as a deficiency, and decreased by the amounts previously abated, credited, refunded, or otherwise repaid in respect of such tax; or

(2) If no amount is shown as the tax by the taxpayer upon his return, or if no return is made by the taxpayer, then the amount by which the tax exceeds the amounts previously assessed (or collected without assessment) as a deficiency; but such amounts previously assessed, or collected without assessment, shall first be decreased by the amounts previously abated, credited, refunded, or otherwise repaid in respect of such tax.

The Commissioner has taken the position that the tax shown by the petitioner on its return is $64,114.37, and that a denial in part of a claim for the abatement of $13,267.65 of that amount, no amounts having been “previously assessed (or collected without assessment) as a deficiency ” nor “ abated, credited, refunded, or otherwise repaid in respect of such tax,” is not the determination of a deficiency within the meaning of section 273 quoted above. It is the contention of the petitioner, however, that since the return was accompanied by a request for relief under section 328, $64,114.37 was not the amount shown on its return as the tax, within the meaning of our decision in the Appeal of John Moir, 3 B. T. A. 21, wherein we held the starting point in the computation of a deficiency to be the amount admitted on the return as the tax, and that denial in part of the claim in abatement is the determination of a deficiency within the meaning of section 273. The petitioner also relies upon our decision in the Appeal of Continental Accounting & Audit Co., 2 B. T. A. 761.

Without passing on the question as to whether or not an application for special assessment filed with a return is such a protest as denies the petitioner’s liability for the tax or a part of the tax shown on the return, in effect like the protest in Appeal of Continental Accounting & Audit Co., supra, we are of the opinion that, even though we assume in this case that the application for special assessment was such protest, the Commissioner has not determined a deficiency. At the most, the petitioner’s application for special assessment was a denial only of that part of the tax shown in the computation on its return as would be eliminated by computation of the tax under the provision of section 328. The conclusion that such was the petitioner’s position at the time of filing the return is supported by statements appearing in the claim for abatement subsequently filed, wherein the abatement of $13,267.65 was claimed until the decision of the Commissioner on the application for special [1109]*1109assessment should “enable the amount of said tax to be accurately determined.”

The petitioner does not now claim that the Commissioner erred in applying the provisions of section 328, and unless the tax has otherwise been increased by the determination of the Commissioner, there is no ground for claiming that a deficiency has been determined. In this respect, the facts show that the tax has been decreased. In its return the petitioner admitted its tax to be the tax properly computed on a net income of $165,508.12, whereas the Commissioner has determined the correct tax to be an amount resulting from a computation, using the same rates, on a net income of $160,317.88. In other words, the Commissioner has determined the correct amount of the tax to be less than the tax admitted to be due by the petitioner on its return, which clearly distinguishes this case from the Appeal of Continental Accounting & Audit Co., supra, and Appeal of John, Moir, supra.

Since no deficiency has been determined, the Board is without jurisdiction, and the appeal is

Dismissed.

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5 B.T.A. 1106, 1927 BTA LEXIS 3676, Counsel Stack Legal Research, https://law.counselstack.com/opinion/ft-pitt-spring-mfg-co-v-commissioner-bta-1927.

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