Board of Tax Appeals v. United States

• Decision Date: 02 December 1929
• Docket Number: No. 4921.,4921.
• Citation: 59 App. DC 161,37 F.2d 442
• Parties: BOARD OF TAX APPEALS v. UNITED STATES ex rel. SHULTS BREAD CO.
• Court: U.S. Court of Appeals — District of Columbia Circuit

59 App. DC 161, 37 F.2d 442 (1929)

BOARD OF TAX APPEALS v. UNITED STATES ex rel. SHULTS BREAD CO.

No. 4921.

Court of Appeals of District of Columbia.

Argued November 5, 1929.

Decided December 2, 1929.

Rehearing Denied January 4, 1930.

Leo A. Rover and C. T. Hendler, both of Washington, D. C., for appellant.

W. C. Sullivan, Raymond F. Garrity, and Leon F. Cooper, all of Washington, D. C., for appellee.

Before MARTIN, Chief Justice, and ROBB and VAN ORSDEL, Associate Justices.

Mandate Stayed 30 Days.

VAN ORSDEL, Associate Justice.

This appeal is from a judgment of the Supreme Court of the District of Columbia directing the issuance of a peremptory writ of mandamus to compel the Board of Tax Appeals to enter a judgment in favor of appellee, plaintiff below.

This action is based upon the alleged failure of the Commissioner of Internal Revenue, after a petition for redetermination of the assessment made by him had been filed with the Board of Tax Appeals, to comply with Rule 14 of the Board, which provides as follows: "After service upon him of a copy of the petition, the Commissioner shall have 60 days within which to file an answer, or 20 days within which to move in respect of the petition."

The petitioner filed his petition with the Board on October 18, 1926. On December 20, 1926, the Commissioner filed with the Board an application for an extension of 120 days within which to answer. It will be observed that this application was filed 42 days after the time allowed to move, and two days after the time allowed to answer, as fixed by Rule 14 of the Board, supra. Two days thereafter, the chairman of the Board of Tax Appeals granted the application for extension of time; and on January 6, 1927, the petitioner filed its motion to vacate the order granting the extension of time, and for judgment in its favor. Hearings were had before the Board on petitioner's motion for judgment; and the Board, on consideration, entered its opinion and decision denying petitioner's motion, whereupon petitioner filed its petition for a writ of mandamus in the present case.

The plaintiff prayed as follows: "That the writ of mandamus may issue out of this honorable court directed to the Board of Tax Appeals requiring it to enter judgment for the relator in each of the causes numbered 20,652 and 20,653 on its docket, to the effect that, for statutory invested capital purposes the value of the assets of the relator, as of January 1, 1918, as shown in its books, of $3,531,630.25, is correct; that the relator is entitled to an allowance for depreciation of its depreciable assets as contended for in its foregoing and annexed petition and in exhibits Nos. 1 and 2 thereto; and that the relator be afforded the benefits of Sections 327 and 328 of the Revenue Acts of 1918 and 1921 (40 Stat. 1093, 42 Stat. 275), with a re-computation in accordance with Rule 50 of the respondent Board."

On filing of the petition a rule to show cause was issued, and within time a return to the rule and an answer to the petition was filed. To this plaintiff filed a reply in the nature of a traverse. On submission of the case to the court on the pleadings and evidence, the court entered a final order adjudging "that the prayers of the petition be, and they hereby are, granted, and that the peremptory writ of mandamus issue forthwith, as prayed in the petition."

We think it unnecessary to devote any extended consideration to the contention of the plaintiff in reference to the rules of the Board. Rule 20 provides: "Continuances,...