OPINION.
Murdock :
The Commissioner on June 3, 1926, mailed a deficiency notice under section 274 of the Revenue Act of 1926 to “ Pittsburgh Terminal Coal Corporation, Successors to the Meadow Lands Coal Company, Wabash Building, Pittsburgh, Pennsylvania,” stating, “An audit of your income and profits tax returns for the years 1917 to 1919, inclusive, has resulted in the determination of a deficiency in tax of $89,583.33 as shown in the attached statement.” The statement shows the following deficiencies:
1917_$61,267.13
1918_ 15, 384. 39
1919_ 12, 931. 81 Total_ 89, 583. 33
The petition was filed by the Pittsburgh Terminal Coal Corporation, and in the petition it stated that the “Pittsburgh Terminal Coal Corporation, as the successor of Meadow Lands Coal Company ” petitions for a redetermination of the deficiencies.
[249]*249The petitioner has now moved for a judgment of no deficiency on the ground that the deficiencies are for years prior to the year in which the petitioner first came into being.
On November 26, 1924, the directors of the Pittsburgh Terminal Coal Company and the directors of the Meadow Lands Coal Company filed in the office of the Secretary of the Commonwealth of Pennsylvania a joint agreement, under the corporate seal of each corporation, for the merger and consolidation of these corporations, duly approved by the stockholders of each corporation and in accordance with an act of the General Assembly of the Commonwealth of Pennsylvania entitled “An Act authorizing the merger and consolidation of certain corporations,” approved May 3, 1909. Thereafter, on December 1, 1924, the Governor of the Commonwealth of Pennsylvania, in accordance with the aforesaid Act of the General Assembly, issued letters patent to the consolidated corporation under the name of “ Pittsburgh Terminal Coal Corporation.” These letters patent declared the consolidated corporation to be and erected it into a body corporate entitled to all the privileges, immunities, franchises and powers conferred by the above mentioned act or which may have theretofore been conferred upon the two consolidating corporations.
From the Pennsylvania statutes here in question and from the decisions of the courts of Pennsylvania, it is apparent that a new corporation is formed, the old corporations, for some purposes at least, are dissolved, and all suits brought after the date of the so-called merger and consolidation must be brought against or in the name of the new corporation. See Pittsburgh & West Virginia Railway Co. et al., 22 B. T. A. 876, where this same consolidation was before us. Dalmas v. Philipsburg & Susguehanna Valley Railroad, Co., 254 Pa. 9; 98 Atl. 796: Punxsatawny Borough v. Phillips Gas & Oil Co., 238 Pa. 23; 85 Atl. 1003; Petry v. Harwood Electric Co., 280 Pa. 142; 124 Atl. 302. If, after December 1, 1924, the Commissioner were to sue for the recovery of these taxes, it would be proper to name the Pittsburgh Terminal Coal Corporation as defendant in such suit, and if he were to sue and name the Meadow Lands Coal Company as defendant and not the Pittsburgh Terminal Coal Corporation, his suit could be dismissed under the decisions of the Pennsylvania courts for failure to name the proper party defendant. Dalmas v. Philipsburg & Susquehanna Valley Railroad Co., supra. But the question of our jurisdiction and procedure is a different one.
We have held in a number of cases, but in each case depending upon the facts in that case, that we do not have jurisdiction over a proceeding instituted by a petition filed by a corporation other than the one as to which the deficiency has been determined and [250]*250asserted by the mailing of a deficiency notice to that corporation. Bisso Ferry Co., 8 B. T. A. 1104; Bond, Inc., 12 B. T. A. 339; American Arch Co., 18 B. T. A. 552; San Joaquin Fruit & Investment Co., 16 B. T. A. 1290; Carnation Milk Products Co., 20 B. T. A. 627. However, the facts in the present case present a somewhat different situation. Here it is clear from the deficiency notice and from the pleadings in the case that the liability for the taxes in controversy arose from the operations of the Meadow Lands Coal Company during the years 1917, 1918, and 1919. The deficiency notice was not addressed to the Meadow Lands Coal Company but was addressed to the “ Pittsburgh Terminal Coal Corporation, Successors to the Meadow Lands Coal Company,” and the petition in' this case was filed by and is the petition of Pittsburgh Terminal Coal Corporation as the successor of Meadow Lands Coal Company. The petitioner contends that the Board has jurisdiction to consider and decide whether the petitioner is liable as a taxpayer for deficiencies in taxes for the years 1917 to 1919, but, since the petitioner was not in existence during the taxable years here in question, and since the proceeding is under section 274 of the Bevenue Act of 1926 and is not a transferee proceeding under section 280 of that act, it is apparent that no deficiencies could exist against it as a taxpayer for the years 1917 to 1919.
The petitioner’s assumption that this is not a transferee proceeding under authority of section 280 of the Bevenue Act of 1926 is entirely justified. Where the Commissioner determines to assess a liability against a person or a corporation as transferee of the assets of a taxpayer for unpaid taxes due from that taxpayer, it is his custom to notify the alleged transferee that he is proceeding as provided in section 280 of the Bevenue Act of 1926. He thus eliminates any uncertainty as to the nature of the proceeding. The deficiency notice in this case not only does not purport to be a notice of the determination of transferee liability, but it obviously purports to be and is a notice that the Commissioner has determined deficiencies in the taxes imposed directly upon a taxpayer. It states:
An audit of your income and profits' tax returns * * * lias resulted in the determination of a deficiency in tax * * *. [Italics supplied.]
At the hearing the presiding Member said to the counsel for the respondent:
I notice tlie deficiency notice attached to the petition * * * does not purport to he a transferee notice.
Counsel for the respondent replied, “ No, sir.”
[251]*251The Member then said:
What is your position, that the notice under 274 should be interpreted as a notice under 280?
Counsel for the respondent replied, “No.”
Counsel for the respondent later in the hearing said:
The respondent may take this position; not only is this the proper proceeding in this case, but he also has the right to come in and affirmatively allege transferee liability so he may have two causes of action.
However, the respondent never has taken that position and he has never claimed the right to come in and affirmatively allege transferee liability in this case. He has not made any such contention in his brief. Under all of these circumstances we see no reason to treat this proceeding as if it were a transferee proceeding.
The Board was established by section 900 of the Revenue Act of 1924 and its existence has been continued in later acts.
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OPINION.
Murdock :
The Commissioner on June 3, 1926, mailed a deficiency notice under section 274 of the Revenue Act of 1926 to “ Pittsburgh Terminal Coal Corporation, Successors to the Meadow Lands Coal Company, Wabash Building, Pittsburgh, Pennsylvania,” stating, “An audit of your income and profits tax returns for the years 1917 to 1919, inclusive, has resulted in the determination of a deficiency in tax of $89,583.33 as shown in the attached statement.” The statement shows the following deficiencies:
1917_$61,267.13
1918_ 15, 384. 39
1919_ 12, 931. 81 Total_ 89, 583. 33
The petition was filed by the Pittsburgh Terminal Coal Corporation, and in the petition it stated that the “Pittsburgh Terminal Coal Corporation, as the successor of Meadow Lands Coal Company ” petitions for a redetermination of the deficiencies.
[249]*249The petitioner has now moved for a judgment of no deficiency on the ground that the deficiencies are for years prior to the year in which the petitioner first came into being.
On November 26, 1924, the directors of the Pittsburgh Terminal Coal Company and the directors of the Meadow Lands Coal Company filed in the office of the Secretary of the Commonwealth of Pennsylvania a joint agreement, under the corporate seal of each corporation, for the merger and consolidation of these corporations, duly approved by the stockholders of each corporation and in accordance with an act of the General Assembly of the Commonwealth of Pennsylvania entitled “An Act authorizing the merger and consolidation of certain corporations,” approved May 3, 1909. Thereafter, on December 1, 1924, the Governor of the Commonwealth of Pennsylvania, in accordance with the aforesaid Act of the General Assembly, issued letters patent to the consolidated corporation under the name of “ Pittsburgh Terminal Coal Corporation.” These letters patent declared the consolidated corporation to be and erected it into a body corporate entitled to all the privileges, immunities, franchises and powers conferred by the above mentioned act or which may have theretofore been conferred upon the two consolidating corporations.
From the Pennsylvania statutes here in question and from the decisions of the courts of Pennsylvania, it is apparent that a new corporation is formed, the old corporations, for some purposes at least, are dissolved, and all suits brought after the date of the so-called merger and consolidation must be brought against or in the name of the new corporation. See Pittsburgh & West Virginia Railway Co. et al., 22 B. T. A. 876, where this same consolidation was before us. Dalmas v. Philipsburg & Susguehanna Valley Railroad, Co., 254 Pa. 9; 98 Atl. 796: Punxsatawny Borough v. Phillips Gas & Oil Co., 238 Pa. 23; 85 Atl. 1003; Petry v. Harwood Electric Co., 280 Pa. 142; 124 Atl. 302. If, after December 1, 1924, the Commissioner were to sue for the recovery of these taxes, it would be proper to name the Pittsburgh Terminal Coal Corporation as defendant in such suit, and if he were to sue and name the Meadow Lands Coal Company as defendant and not the Pittsburgh Terminal Coal Corporation, his suit could be dismissed under the decisions of the Pennsylvania courts for failure to name the proper party defendant. Dalmas v. Philipsburg & Susquehanna Valley Railroad Co., supra. But the question of our jurisdiction and procedure is a different one.
We have held in a number of cases, but in each case depending upon the facts in that case, that we do not have jurisdiction over a proceeding instituted by a petition filed by a corporation other than the one as to which the deficiency has been determined and [250]*250asserted by the mailing of a deficiency notice to that corporation. Bisso Ferry Co., 8 B. T. A. 1104; Bond, Inc., 12 B. T. A. 339; American Arch Co., 18 B. T. A. 552; San Joaquin Fruit & Investment Co., 16 B. T. A. 1290; Carnation Milk Products Co., 20 B. T. A. 627. However, the facts in the present case present a somewhat different situation. Here it is clear from the deficiency notice and from the pleadings in the case that the liability for the taxes in controversy arose from the operations of the Meadow Lands Coal Company during the years 1917, 1918, and 1919. The deficiency notice was not addressed to the Meadow Lands Coal Company but was addressed to the “ Pittsburgh Terminal Coal Corporation, Successors to the Meadow Lands Coal Company,” and the petition in' this case was filed by and is the petition of Pittsburgh Terminal Coal Corporation as the successor of Meadow Lands Coal Company. The petitioner contends that the Board has jurisdiction to consider and decide whether the petitioner is liable as a taxpayer for deficiencies in taxes for the years 1917 to 1919, but, since the petitioner was not in existence during the taxable years here in question, and since the proceeding is under section 274 of the Bevenue Act of 1926 and is not a transferee proceeding under section 280 of that act, it is apparent that no deficiencies could exist against it as a taxpayer for the years 1917 to 1919.
The petitioner’s assumption that this is not a transferee proceeding under authority of section 280 of the Bevenue Act of 1926 is entirely justified. Where the Commissioner determines to assess a liability against a person or a corporation as transferee of the assets of a taxpayer for unpaid taxes due from that taxpayer, it is his custom to notify the alleged transferee that he is proceeding as provided in section 280 of the Bevenue Act of 1926. He thus eliminates any uncertainty as to the nature of the proceeding. The deficiency notice in this case not only does not purport to be a notice of the determination of transferee liability, but it obviously purports to be and is a notice that the Commissioner has determined deficiencies in the taxes imposed directly upon a taxpayer. It states:
An audit of your income and profits' tax returns * * * lias resulted in the determination of a deficiency in tax * * *. [Italics supplied.]
At the hearing the presiding Member said to the counsel for the respondent:
I notice tlie deficiency notice attached to the petition * * * does not purport to he a transferee notice.
Counsel for the respondent replied, “ No, sir.”
[251]*251The Member then said:
What is your position, that the notice under 274 should be interpreted as a notice under 280?
Counsel for the respondent replied, “No.”
Counsel for the respondent later in the hearing said:
The respondent may take this position; not only is this the proper proceeding in this case, but he also has the right to come in and affirmatively allege transferee liability so he may have two causes of action.
However, the respondent never has taken that position and he has never claimed the right to come in and affirmatively allege transferee liability in this case. He has not made any such contention in his brief. Under all of these circumstances we see no reason to treat this proceeding as if it were a transferee proceeding.
The Board was established by section 900 of the Revenue Act of 1924 and its existence has been continued in later acts. The question of what it may consider and decide in any proceeding depends in the first place upon the intention of Congress as expressed in these acts. Section 274 of the Revenue Act of 1924 provided that if, in the case of any taxpayer, the Commissioner determined that there was a deficiency in tax, he should notify the taxpayer of such deficiency and within a prescribed time the taxpayer might file an appeal with the Board of Tax Appeals. A similar provision is contained in section 274 (a) of the Revenue Act of 1926.
At the time of the passage of the Revenue Act of 1926, the Commissioner had no authority to send a deficiency notice to one corporation. successor to another in respect of taxes imposed upon the latter in previous years where the two corporations were different corporations and the corporate entity of the old was not continued in the new. The deficiency notice in this case was mailed on June 3, 1926, to the one which here petitions. This was after the approval of the Revenue Act of 1926 containing section 280. Under section 280 the Commissioner was authorized, inter alia, to notify a transferee that he was liable in respect of the tax imposed upon a certain taxpayer. Any transferee who received such a notice was permitted to file a petition with this Board just as if he had received a notice under section 274. Congress must have had in mind a distinction between the word “ taxpayer ” which it used throughout this act, particularly in sections 274 and 280, and the word “ transferee ” as used throughout the act, particularly in section 280. The Revenue Act of 1928 in section 602 provided for the amendment of Title IX of the Revenue Act of 1924, as amended to include two new sections, one of which was as follows:
[252]*252lEANSlTEREE PROCEEDINGS
Sec. 912. In proceedings before the Board tbe burden of proof shall be upon the Commissioner to show that a petitioner is liable as a transferee of property of a taxpayer, but not to show that the taxpayer was liable for the tax.
Apparently, Congress did not intend that the tax liability of a taxpayer corporation should be litigated before this Board by another separate corporation though successor to the taxpayer and liable for its tax or that transferee liability should be contested before the Board except where the Commissioner has determined to act and has acted under section 280. The deficiency notice in this case was a notice of a determination of a deficiency under section 274 and not of transferee liability under section 280. When we come to examine the taxes which the Commissioner here asserts, it is obvious that they are not taxes of this taxpayer and were not imposed upon it as a taxpayer by any revenue act. Another corporation, the Meadow Lands Coal Company, was the taxpayer upon which these taxes were imposed by the revenue acts. If the Commissioner proposes to assess those taxes against the Pittsburgh Terminal Coal Corporation, he should proceed under section 280 of the Revenue Act of 1926. National, Bank of Commerce et al., 19 B. T. A. 1080. Apparently he now recognizes this fact, for he has sent notices to the Pittsburgh Terminal Coal Corporation under section 280, proposing to assess certain amounts against it representing taxes imposed upon the Meadow Lands Coal Company for years subsequent to the year 1919 because of its liability as a transferee of the property of the Meadow Lands Coal Company.
We have no reason in this case to consider the question of the liability of the petitioner at law or in equity in respect of taxes imposed upon the Meadow Lands Coal Company. We are here limited to decision of the question of whether or not the petitioner is liable as a taxpayer for any deficiency in taxes imposed upon it and of which it has been notified in accordance with section 274. But for the years involved there is no deficiency in such taxes so far as the record in this case discloses.
Reviewed by the Board.
Judgment of no deficiency will he entered.