Pilliod Lumber Co. v. Commissioner

7 B.T.A. 591, 1927 BTA LEXIS 3140

• Court: United States Board of Tax Appeals
• Decided: July 8, 1927
• Docket: Docket No. 10015.
• Status: Published

Opinion

OPINION.

Littleton :

Section 239 of the Revenue Act of 1918 provides :

That every corporation subject to taxalion under this title and every personal service corporation shall make a return, stating specifically the items of its gross income and the deductions and credits allowed by this title. The return shall be sworn to by the president, vice president, or other principal officer and by the treasurer or assistant treasurer.

The paper filed by the petitioner on March 14, 1919, in the nature of a request for an extension of time for filing a complete return and termed a “ tentative return ” was certainly not such a return as the statute required. Dallas Brass & Copper Co., 3 B. T. A. 856; Boston Hide Leather Co., 5 B. T. A. 617; Matteawan Manufacturing Co., 4 B. T. A. 953.

Was the document designated Form 1120 filed by petitioner on May 31, 1919, the return required by the statute ?

The document in question was neither signed nor sworn to by any one. There is no provision of law authorizing the Commissioner to waive either the oath or the signatures required by the statute. That the Commissioner considered the document filed with the collector on May 31, 1919, at the top of the first page of which was typewritten the name of the petitioner as not being the return required by the statute, is evidenced by the fact that he called the attention of the company to the matter and a request was made for a sworn statement of the officers touching the subject.

The signatures and oath of the proper parties to a corporate return are not mere empty forms. The purpose is to fix responsibility. Bell Lumber Co., 2 B. T. A. 564; Gutterman Strauss Co., 2 B. T. A. 433. Congress evidently intended when requiring that returns be signed and sworn to, that such signatures and oath should have an important bearing upon the determination of the rights of the taxpayer and the Government.

The affidavit made at the request of the Commissioner on September 17, 1923, is a sworn acknowledgment of the return as required by law.

Under the circumstances, as shown by the evidence in this case, the Board is of the opinion that the Form 1120, filed May 31, 1919, now claimed as a proper income-tax return for the year 1918, was not at that time such a return as the Revenue Act of 1918 required should be made and filed. Updike v. United States, 8 Fed. (2d) 913.

The petitioner cites and relies on the case of Emmioh v. United States, 298 Fed. 5, as sustaining the proposition that a return may be such within the meaning of the statute, although not sworn to.

From a careful reading of that case, it will be seen that the defendant was convicted under a count in the indictment charging him with “ knowingly, willfully and feloniously attempting to defeat and evade the tax imposed by the Revenue Act of 1921 ” by knowingly, willfully and feloniously making a return of income far less than the amount of which he was actually the recipient. The gist of the offense was defendant’s attempt to evade and defeat the tax imposed, to deceive and defraud the Government by making false and deceptive statements in the return or paper he filed as such. Such attempt or purpose on his part might be effective, if the paper was accepted by the collector as true, whether sworn to or not. There was no question but that Emmich signed the return and there was some evidence that it was sworn to.

It is stated in the opinion of the court that “ in the first place there is some testimony in the record which would indicate, if believed, that the return was sworn to, and, as has already been explained, it is the province of the jury to determine what weight should be given to the evidence.”

The Board is of the opinion in this case that the statute of limitation did not begin to run more than five years before October 23, 1925, and hence would not now operate as a bar to the proposed tax assessment.

The Board, therefore, determines that there is a deficiency of $963.34 in respect of the tax of this petitioner for the calendar year 1918.

Judgment will be entered for the respondent.