65 F.2d 176 (D.D.C. 1933), 5655, Fleitmann v. Burnet

Docket Nº:5655.
Citation:65 F.2d 176
Party Name:FLEITMANN et al. v. BURNET, Com'r of Internal Revenue.
Case Date:April 03, 1933
Court:United States Courts of Appeals, Court of Appeals for the District of Columbia Circuit
 
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Page 176

65 F.2d 176 (D.D.C. 1933)

FLEITMANN et al.

v.

BURNET, Com'r of Internal Revenue.

No. 5655.

Court of Appeals of the District of Columbia.

April 3, 1933

Argued February 17, 1933.

Appeal from the Board of Tax Appeals.

Howe P. Cochran, of Washington, D. C., for appellants.

G. A. Youngquist, Sewall Key, Morton K. Rothschild, C. M. Charest, and Bruce A. Low, all of Washington, D. C., for appellee.

Before MARTIN, Chief Justice, and ROBB, HITZ, and GRONER, Associate Justices.

GRONER, Associate Justice.

The appeal in this case involves income taxes for the year 1918 and is thken from a decision of the Board of Tax Appeals. The questions involved are: First, whether a waiver is valid where the commissioner has consented to the waiver but his name is not affixed thereto by him personally or by someone expressly authorized by him to sign his name; and, second, whether section 278 (e) of the Revenue Act of 1924 (43 Stat. 299, 26 USCA § 1062 note) renders invalid waivers executed after the enactment of that act with respect to taxes, the assessment and collection of which had become barred prior to the effective date of the act.

The question embraced in No. 2 above has since the argument been answered against the petitioner and in favor of the United States by the decision of the Supreme Court in McDonnell v. United States, 53 S.Ct. 410, 77 L.Ed. 869 (decided March 13, 1933).

The petitioners are executors of the estate of Herman C. Fleitmann. The latter filed his income tax return for the calendar year 1918 on March 15, 1919. The period of limitation expired on March 15, 1924, unless it was extended by valid waivers. Revenue Act 1921, § 250(d), 42 Stat. 265. There were five waivers, the last dated September 27, 1929.

It is admitted that the taxpayer signed and returned the respective waivers. The first three received were, however, not signed by the commissioner personally, but the commissioner's name was affixed by Albert Lewis, the head of the Personal Augit Division of the Income Tax Unit. Lewis had been authorized in writing by the commissioner to sign his name to waivers. On the fourth waiver Commissioner Blair's name was affixed by the secretary to H. B. Robinson. Robinson was head of the division in the Income Tax Unit and was duly authorized to sign the commissioner's name. He in turn authorized his secretary to sign. The fifth waiver bore the name of Commissioner Lucas, who succeeded Commissioner Blair, and was followed by that of Collector Anderson at New York City. Anderson had...

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