Ceco Steel Products Corp. v. Commissioner of Int. Rev.
| Decision Date | 23 July 1945 |
| Docket Number | No. 13043.,13043. |
| Citation | 150 F.2d 698 |
| Parties | CECO STEEL PRODUCTS CORPORATION v. COMMISSIONER OF INTERNAL REVENUE. |
| Court | U.S. Court of Appeals — Eighth Circuit |
Edgar M. Morsman, 3d, of Omaha, Neb. (Morsman & Maxwell, of Omaha, Neb., on the brief), for petitioner.
Carlton Fox, Sp. Asst. to Atty. Gen. (Samuel O. Clark, Jr., Asst. Atty. Gen., and Sewall Key and J. Louis Monarch, Sp. Assts. to Atty. Gen., on the brief), for respondent.
Before GARDNER, JOHNSEN, and RIDDICK, Circuit Judges.
On May 5, 1942, the taxpayer filed with the Tax Court a petition for a review of a deficiency determined by the Commissioner in the taxpayer's income tax and excess profits tax for the year 1940.
After the Commissioner had answered the taxpayer's petition, the Revenue Act of 1942 was enacted and approved. Section 222 of this Act amended section 722 of the Internal Revenue Code, 26 U.S.C.A. Int. Rev.Acts, with regard to procedure on claims for relief from a discriminatory excess profits tax due to abnormalities in income.
In addition to the procedure theretofore provided on claims for relief under section 722 of the Internal Revenue Code, the amendment referred to also authorized applications for relief on such claims by petition to the Tax Court in certain exceptional cases. See Pioneer Parachute Co. v. Commissioner, 4 T.C. 27. The taxpayer, conceiving that the provisions of section 722 of the Internal Revenue Code, section 222 of the Revenue Act of 1942, permitted it in the circumstances of this case to appeal directly to the Tax Court for relief, or possibly, as stated in its brief, required it to make its application for the relief claimed both to the Commissioner and by way of a petition before the Tax Court, applied to the Tax Court for leave to amend its pending petition in that court to seek relief under section 722, and also filed with the Commissioner its application for the same relief sought in its amended petition before the Tax Court.
Leave to amend was granted as requested, and on March 3, 1943, the taxpayer filed the amendment to its petition. The Commissioner answered, denying the taxpayer's right to the relief claimed. Before any action by the Tax Court in the proceeding before it, which, as amended, asked for a review of the deficiency determined by the Commissioner in the taxpayer's income tax and excess profits tax for the year 1940, and for relief under section 722 of the Internal Revenue Code, Congress again amended section 722 of the Internal Revenue Code by omitting therefrom the provision for application to the Tax Court for general relief from excess profits tax. Public Law 201, First Session, 78th Congress, approved December 17, 1943, 57 Stat. 601, 26 U.S.C.A. Int.Rev.Acts. This amendment to section 722 was made applicable in respect to the taxable year here involved. Following the approval of the Act of December 17, 1943, the Commissioner moved to dismiss the taxpayer's amended petition insofar as it related to the application for relief under section 722 of the Code, on the ground that it was prematurely filed, the Commissioner not having acted upon the claim for the same relief pending before him, and the Tax Court, for that reason, being without jurisdiction of taxpayer's claim for relief under section 722.
The Commissioner's motion to dismiss was sustained by the Tax Court and an order entered on October 4, 1944, providing: "That the respondent's motion is granted and the proceeding is dismissed for lack of jurisdiction insofar as it relates to relief claimed under Section 722 of the Internal Revenue Code."
The taxpayer seeks a review of this order of the Tax Court, and the Commissioner moves to dismiss on the ground that the order is one not subject to review by this court, and, in the alternative, contends that the order of the Tax Court must be affirmed if it is such an order as this court has jurisdiction to review under section 1141(a) of the Internal Revenue Code, 26 U.S.C.A. Int.Rev.Code, § 1141(a).
The basis for the Commissioner's motion to dismiss is that the order of the Tax Court is a mere intermediate order governing only the course of procedure before the Tax Court, and not a final or definitive determination by the Tax Court of taxpayer's right to the relief claimed. In the brief on behalf of the Commissioner it is stated that the application for relief under section 722 of the Code, which the taxpayer has presented to the Commissioner, was denied by the Commissioner on October 2, 1944, and that on October 6, 1944, taxpayer filed with the Tax Court a petition for review of the Commissioner's action in the premises. This assertion in the Commissioner's brief is not denied by the...
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