Badger Materials, Inc. v. Comm'r of Internal Revenue, Docket Nos. 88818

• Decision Date: 30 September 1963
• Docket Number: 94219.,Docket Nos. 88818,89942-89947
• Citation: 40 T.C. 1061
• Parties: BADGER MATERIALS, INC., ET AL.,1 PETITIONERS, V. COMMISSIONER OF INTERNAL REVENUE, RESPONDENT
• Court: U.S. Tax Court

40 T.C. 1061

BADGER MATERIALS, INC., ET AL.,1 PETITIONERS, V. COMMISSIONER OF INTERNAL REVENUE, RESPONDENT

Docket Nos. 88818

89942-89947

94219.

Tax Court of the United States.

Filed September 30, 1963.

W. Wade Boardman, Thomas Ragatz, and Charles E. Prieve, for the petitioners.

W. B. Riley, for the respondent.

Opinion in 40 T.C. 725 withdrawn in part and modified. Held, that since no suit or other proceeding was commenced within 2 years after the dissolution of Badger Materials, Inc., under Wisconsin law, the corporate petitioner was nonexistent and no one was authorized to act for it in filing the petition herein. Therefore, such proceeding must be dismissed for lack of jurisdiction. Held, further, that this Court could not determine on its own motion that notices of transferee liability mailed to six of the transferees were untimely as to the taxable year ended October 31, 1955.

SUPPLEMENTAL OPINION

DAWSON, Judge:

On September 27, 1963, this Court granted the following motions filed by the respondent (and not objected to by the petitioners) in these proceedings:

1. Motions to Vacate Decisions (Orders) entered on July 30, 1963.

2. Motion to Withdraw and Modify Opinion (40 T.C. 725) filed on July 10, 1963.

3. Motion for Reconsideration.

In addition, the Court also granted the Motion to Withdraw Motion to Dismiss for Lack of Jurisdiction filed by counsel for Arthur Overgaard, Transferee, in Docket No. 94219. Since this motion has been granted, it has become unnecessary for us to consider whether the notice of transferee liability mailed to Overgaard on June 15, 1961, was untimely because such issue is no longer before us. Therefore, all parts of the prior opinion relating to Overgaard are withdrawn.

The proceeding in Badger Materials, Inc., Docket No. 88818, was before the Court on the petitioner's motion to dismiss for lack of jurisdiction based on two grounds: (1) That Badger Materials, Inc., had no legal existence at the time of filing the petition herein since no person had the requisite capacity at that time to act on behalf of the dissolved corporation; and (2) that the statutory notice of deficiency was mailed after the applicable period for assessment against the corporate petitioner had expired. We have found that Badger Materials, Inc., ceased to exist for all purposes under Wisconsin law ² on November 4, 1959, which was 2 years after the date of its dissolution.

It is clear from our opinion in Wheeler's Peachtree Pharmacy, Inc., 35 T.C. 177 (1960), acq. 1961-2 C.B. 5, that the consents (Form 872) executed by J. A. Gallagher as ‘Treasurer at Date of Liquidation’ did not constitute a ‘suit or other proceeding’ commenced within 2 years after November 4, 1957. As pointed out in our prior opinion herein (40 T.C.at 732), we likewise do not regard the filing of an application for tentative carryback adjustment or the issuance of an informal conference letter as a ‘suit or other proceeding’ within the purview of the Wisconsin statute. It then follows that no person had the capacity on August 31, 1960, to file the petition in Docket No. 88818 on behalf of the corporate petitioner. Accordingly, we hold that this Court does not have jurisdiction over Badger Materials, Inc. In so holding with respect to the jurisdictional matter, we need not determine whether the statutory notice of deficiency sent to the corporate petitioner was untimely and the assessment of the deficiencies barred by the statute of limitations. Thus, we also withdraw that part of our prior opinion which deals with the statute of limitations issue as to the corporate petitioner.

Finally, on our own motion (40 T.C.at 735) we determined that the notices of transferee liability mailed to the other six transferees were untimely as to the taxable year ended October 31, 1955, and, therefore, dismissed such petitioners for lack of jurisdiction as to that year. This was erroneous because an issue based on the statute of limitations is a defense in bar and not a plea to the jurisdiction of this Court. When such a defense in bar is properly raised, we must pass upon the merits of the issue after receiving evidence with respect thereto and not dismiss for lack of jurisdiction. See United Business Corporation of America, 19 B.T.A. 809, 831-832 (1930), affd. 62 F.2d 754 (C.A. 2, 1933), certiorari denied 290 U.S. 635 (1933); Arlington F. Brown, 24 T.C. 256, 264 (1955); and Rice v. Commissioner, 295 F.2d 239 (C.A. 5, 1961), affirming per curiam a Memorandum Opinion of this Court. Here the transferees, other than Overgaard, did not affirmatively raise by motion the statute of limitations question or present any evidence at the hearing. And we are not at liberty to use the record on the motions originally filed by Overgaard and Badger Materials, Inc., to determine the statute of limitations issue as it relates to the other transferees. Cf. B. F. Edwards, 39 B.T.A. 735 (1939); and Funk v. Commissioner, 163 F.2d 796 (C.A. 3, 1947)....