La Floridienne J. Buttgenbach & Co. v. Commissioner of Internal Revenue
| Decision Date | 18 February 1933 |
| Docket Number | No. 6496.,6496. |
| Citation | 63 F.2d 630 |
| Parties | LA FLORIDIENNE J. BUTTGENBACH & CO. v. COMMISSIONER OF INTERNAL REVENUE. |
| Court | U.S. Court of Appeals — Fifth Circuit |
J. G. Korner, Jr., of Washington, D.C., for petitioner.
G. A. Youngquist, Asst. Atty. Gen., Sewall Key and Norman D. Keller, Sp. Assts. to the Atty. Gen., and C. M. Charest, Gen. Counsel, Bureau of Internal Revenue, and Shelby S. Faulkner, Sp. Atty., Bureau of Internal Revenue, both of Washington, D.C., for respondent.
Before BRYAN, FOSTER, and SIBLEY, Circuit Judges.
The Board of Tax Appeals denied the joint petition of the taxpayer and the Commissioner of Internal Revenue to vacate and set aside an order redetermining a tax deficiency entered January 19, 1927, and to enter instead an order agreed on. The denial was based on a supposed want of power to set aside the order, as we are assured by counsel and as is indicated by the dissent filed by four members of the Board. The circumstances are extraordinary. The taxpayer, an alien corporation, was assessed with taxes, and its representative, a layman inexperienced in tax matters, conferred with an agent of the Bureau of Internal Revenue in charge of the case, who, not knowing of the changes in the law touching decisions of the Board of Tax Appeals made by the Revenue Act of 1926, represented that the taxpayer's contention that it was not subject to taxation could best be asserted by agreeing on the amount of the tax in a stipulation before the Board, paying the resulting redetermination, and then applying for refund to the Commissioner, who would make the refund if the taxpayer was found not taxable. This was all done by the taxpayer, but the Commissioner after long delay decided on February 25, 1931, that, though the supposed taxpayer was not liable to any tax, and was entitled to have back what had been collected, under the Revenue Act of 1926, § 284 (d), 26 USCA § 1065 (d), he could not make a refund in the face of the redetermination by the Board, notwithstanding the Board had not in fact passed upon the question of nonliability; and that an amendment or correction of the Board's order was necessary. The Commissioner thereupon signed a stipulation with the taxpayer showing the overpayment and its amount, and agreeing that the Board enter an order accordingly. He also joined in the petition which sets up the above facts, agreeing and conceding that the first stipulation was made under a mutual mistake and misunderstanding carried into the Board's order of January 19, 1927, and praying that it be corrected so that proper refund could be made.
Counsel for the Commissioner here stands to the petition if it can be lawfully granted, but as in duty bound contends that the Board after four years cannot vacate its order, especially since Revenue Act of 1926, § 1005 (26 USCA § 1228), expressly declares: "The decision of the board shall become final — (1) Upon the expiration of the time allowed for filing a petition for review, if no such petition has been duly filed within such time. * * *" We appreciate the necessity of prompt decisions touching taxes, and that they shall stand firm. The reviews mentioned in section 1005 no doubt measure the taxpayer's right to litigate, and the Board's decision is final on exhaustion or neglect of them...
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Roberts v. C.I.R.
...that fraud was perpetrated on the court or that the court lacked jurisdiction to enter the decision); La Floridienne J. Buttgenbach & Co. v. Commissioner, 63 F.2d 630, 631 (5th Cir.1933) (espousing much criticized view that Board of Tax Appeals had jurisdiction to vacate final order that wa......
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Estate of Smith v. Commissioner of Internal Revenue, 123 T.C. No. 2 (U.S.T.C. 7/13/2004), 19200-94.
...219 F.2d 610 (6th Cir. 1955) (relief may be allowed in the case of a mutual mistake of fact);4 La Floridienne J. Buttgenbach & Co. v. Commissioner, 63 F.2d 630 (5th Cir. 1933) (relief may be allowed in the case of a joint stipulation to vacate). As to the Court of Appeals for the Fifth Circ......
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Smith v. Comm'r of Internal Revenue (In re Estate of Smith) , 19200–94.
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Toscano v. CIR
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