Blackbird v. COMMISSIONER OF INTERNAL REVENUE, Docket No. 23272.

• Decision Date: 14 January 1929
• Docket Number: Docket No. 23272.
• Parties: MARY BLACKBIRD, PETITIONER, v. COMMISSIONER OF INTERNAL REVENUE, RESPONDENT.
• Court: U.S. Board of Tax Appeals

14 B.T.A. 1247 (1929)

MARY BLACKBIRD, PETITIONER, v. COMMISSIONER OF INTERNAL REVENUE, RESPONDENT.

Docket No. 23272.

Board of Tax Appeals.

Promulgated January 14, 1929.

T. J. Leahy, Esq., for the petitioner.

Shelby S. Faulkner, Esq., for the respondent.

OPINION.

STERNHAGEN:

This is one of three proceedings brought to test the validity of numerous determinations, made by the Commissioner, under the Revenue Act of 1926, of deficiencies in income tax in respect of individual members of the Osage Tribe of Indians. This petitioner is a full blood member of the tribe without a certificate of competency; Henry Chouteau, whose case is separately considered, had a certificate of competency; and Amarillis D. Pettit, whose case is also separately considered, is not a member of the tribe but by reason of marriage to a member she by inheritance derives income through the Indian tribe. Counsel for petitioner rests all three cases upon the same argument and treats them as indistinguishable in law, notwithstanding differences in fact. Each case has been submitted upon a stipulation of all the facts. This stipulation in the instant case is as follows:

It is hereby stipulated and agreed by and between the above-named petitioner and the above-named respondent that the following is a true and correct statement of the facts involved in this controversy; and that the Board of Tax Appeals may accept the same as a true, correct, and complete statement of the facts involved, in conjunction with the petition and answer filed in this case, and render judgment thereon.

(1) The petitioner, Mary Blackbird, is a full blood member of the Osage Tribe of Indians, duly enrolled and allotted as such under the Act of Congress of June 28, 1906, (34 Stat. at L., 539), and has never received a certificate of competency as provided under said Act of Congress.

(2) Mary Blackbird is the owner, by inheritance from another full blood member of the Osage Tribe of Indians, who was duly enrolled and allotted as such, of one-third share or allotment, and during the years in question she was the owner of, and in possession of, one and one-third shares or allotments, representing her own share or allotment which was allotted to her, and one-third share which she received by inheritance.

(3) During the year 1920 she received as income from her own share or allotment as a member of the Osage Tribe of Indians, from bonuses and royalties received by said tribe, $9,900.00, and from the one-third share or allotment which she owned as an inheritance, $3,300.00; and that she paid as income tax for said year the sum of $682.08.

(4) For the year 1921 she received as income from her own share or allotment, from bonuses and royalties received by the Osage Tribe of Indians, the sum of $6,100.00, and from the inherited one-third share or allotment that was owned by her, $2,033.34; and that she paid as income tax for said year the sum of $221.29.

(5) The income received by the petitioner, as shown by each of said years, designated as rents, in addition to the amount of income received from the shares or allotments owned by the petitioner from bonuses and royalties, was income from the lands allotted to the petitioner under the Act of Congress of June 28, 1906, supra, and income from the lands inherited by her from another member of the Osage Tribe of Indians, and which were allotted to such other member under the said Act of Congress of June 28, 1906. She received as income from what is designated by said Act of Congress as her homestead allotment for each of said years the sum of $480.00, and the balance of the income as rents came from what is designated as her surplus allotments and from the lands inherited by her, as above set forth, for each of said years. The items designated as interest on trust funds was interest on funds held in trust for her by the United States under the Act of Congress of June 28, 1906, supra.

(6) All of said income, except what is stated in paragraph five above as rents from her lands and interest on trust funds, was income from her pro rata part of the income of the Osage Tribe of Indians received from oil and gas mineral leases, made by said tribe with the approval of the Secretary of the Interior under the said Act of Congress of June 28, 1906, upon part of the lands originally bought for the Osage Tribe of Indians and held in trust for said tribe by the United States; said lands being purchased from the Cherokee Tribe of Indians and deeded to the United States to be held in trust by it for the said Osage Tribe of Indians. A true copy of the aforementioned deed, marked Exhibit "A", is attached hereto and made a part hereof.

(7) The lands aforesaid were purchased from the Cherokee Tribe of Indians with funds theretofore realized from the sale of lands of the Osage Indians located in the State of Kansas. The funds aforementioned held in trust for her by the United States were her allotment of the proceeds from the sale of Kansas lands not used in purchasing the lands from the Cherokee Tribe of Indians.

(8) The parties agree that the Board may take judicial notice of all pertinent statutes and treaties.

(9) The member of the Osage Tribe of Indians from whom the petitioner inherited said allotment or share as above set forth was a full blood member of said Osage Tribe of Indians, and did not have a certificate of competency.

(10) The computations as to amounts and depletion allowed, made by respondent, as shown by the notice of deficiency, are correct.

To this stipulation is appended a copy of the deed of June 14, 1883, from the Cherokee Nation to the United States in trust for the Osage and Kansas Indians, of certain lands west of the Arkansas River.

The references in subdivision (5) of the stipulation to certain amounts designated as rents and interest are apparently to the designations appearing in the Commissioner's notice of deficiency appended to the petition. This shows for 1920:

                Royalties _______________________________________________  $6,533.34
                Bonus ___________________________________________________   6,666.65
                Interest on trust fund __________________________________     100.00
                Rents on land ___________________________________________   1,272.30
                Miscellaneous ___________________________________________      10.29
                                                                          __________
                                                                           14,582.58
                Less depletion allowed __________________________________   2,746.88
                                                                          __________
                Balance _________________________________________________  11,835.70
                Less
                    Interest paid ______________________________  $200.00
                    Taxes paid _________________________________   143.21
                    Contributions ______________________________    75.00
                                                                  _______     418.21
                                                                          __________
                Taxable income __________________________________________  11,417.49
                Less personal exemption _________________________________   1,000.00
                                                                          __________
                Balance subject to normal tax ___________________________  10,417.49
                Amount subject to tax at 4 per cent _____________________   4,000.00
                                                                          __________
                

                Balance subject to tax at 8 per cent ____________________  $6,417.49
                Amount of tax at 4 per cent normal tax __________________     160.00
                Amount of tax at 8 per cent normal tax __________________     513.40
                Surtax at graduated rates on $11,417.49 _________________     166.70
                                                                          __________
                       Total ____________________________________________     840.10
                Tax previously assessed _________________________________     622.08
                                                                          __________
                       Deficiency in tax ________________________________     218.02
                

Petitioner, under section 284 (e), Revenue Act 1926, claims overpayment of $622.08 and $221.29 already paid for 1920 and 1921. The effect of this would be to leave petitioner altogether...