Commissioner of Internal Rev. v. Realty Operators, 9704.
| Decision Date | 20 March 1941 |
| Docket Number | No. 9704.,9704. |
| Citation | 118 F.2d 286 |
| Parties | COMMISSIONER OF INTERNAL REVENUE v. REALTY OPERATORS, Inc. |
| Court | U.S. Court of Appeals — Fifth Circuit |
Michael H. Cardozo, IV, and Sewall Key, Sp. Assts. to Atty. Gen., Samuel O. Clark, Jr., Asst. Atty. Gen., J. P. Wenchel, Chief Counsel, Bureau of Internal Revenue, and Irving M. Tullar, Sp. Atty., Bureau Internal Revenue, all of Washington, D. C., for petitioner.
C. M. Trammell, C. M. Trammell, Jr., and Donald McGovern, all of Washington, D. C., for respondent.
Before SIBLEY, HOLMES, and McCORD, Circuit Judges.
This petition to review a decision of the Board of Tax Appeals is met by a motion to dismiss which must be sustained.
On December 7, 1939, the Board's opinion was promulgated and became known to the Commissioner, stating that a decision would be entered under Rule 50 of the Board. Under that rule the taxpayer filed a computation which was acquiesced in by the Commissioner on Jan. 9, 1940. No further hearing therefore was to be had before the Board. It entered its decision the same day. It had been customary for the Clerk to advise counsel for the Commissioner of the entry of decisions, but no statute or rule requires it. No notice was given the counsel of this decision. He learned of it on April 9, 1940, the last day for taking a petition for review. Internal Revenue Code, § 1142, 26 U.S.C.A. Int.Rev. Code, § 1142. Instead of filing such a petition, he presented to a member of the Board a motion to vacate and set aside the final decision on the sole ground "that the respondent (the Commissioner) has not at any time prior to the date of this motion been served with any copy" of said decision. The Board member granted the motion forthwith without a hearing, and on the following day, apparently again without a hearing, entered another decision in identical words. The taxpayer filed a motion to strike as untimely and void the Commissioner's motion of April 9, and the decision of April 10th. This motion the same Board member overruled on June 12, 1940. The petition for review was filed Aug. 30, 1940, and recites all the above proceedings. The motion to dismiss states that on the hearing of taxpayer's motion on June 12, 1940, the Board member stated: "Of course the reason for vacating the decision entered Jan. 9 was solely to give respondent (the Commissioner) the usual time for taking an appeal, if he desired to do so." In the Commissioner's brief on the motion this is not denied.
Our jurisdiction depends wholly on the provisions of the statutes establishing the Board of Tax Appeals. A jurisdictional condition is stated in Internal Revenue Code, § 1142, 26 U.S.C.A. Int.Rev. Code, § 1142: "The decision of the Board * * * may be reviewed by a Circuit Court of Appeals * * * if a petition for such review is filed by either the Commissioner or the taxpayer within three months after the decision is rendered." If filed later, we have not jurisdiction. Section 1117(c) declares: "A decision of the Board * * * shall be held to be rendered upon the date that an order specifying the amount of the deficiency is entered on the records of the Board." There is no provision for the Clerk to give notice. The interested parties must observe the records of the Board. A custom of the Clerk to notify counsel is a voluntary friendly service, a failure in which cannot affect the date of the decision.
Section 1111 declares: "The proceedings of the Board and its divisions shall be conducted in accordance with such rules of practice and...
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