Eclipse Lawn Mower Co. v. United States, K—40.

• Decision Date: 14 November 1932
• Docket Number: No. K—40.,K—40.
• Citation: 1 F. Supp. 768
• Parties: ECLIPSE LAWN MOWER CO. v. UNITED STATES.
• Court: U.S. Claims Court

1 F. Supp. 768

ECLIPSE LAWN MOWER CO. v. UNITED STATES.

No. K—40.

Court of Claims.

November 14, 1932.

COPYRIGHT MATERIAL OMITTED

William Cogger of Washington, D. C. (John E. Hughes, of Chicago, Ill., on the brief), for plaintiff.

Lisle A. Smith, of Washington, D. C., and Charles B. Rugg, Asst. Atty. Gen. (Lester L. Gibson, of Washington, D. C., on the brief), for the United States.

Before BOOTH, Chief Justice, and GREEN, LITTLETON, WILLIAMS, and WHALEY, Judges.

LITTLETON, Judge.

The plaintiff's case is based entirely upon the contention that there was no valid waiver on file with the commissioner which authorized him to assess the additional tax on May 15, 1924, and to make collection thereof on May 26, 1924. It is our opinion that this claim cannot be sustained. The facts show that the statutory period of limitation within which the commissioner could assess and collect an additional tax for 1918 without a waiver expired April 17, 1924. On January 28, 1924, about four months prior to the date of assessment and while the case was under consideration and audit by the commissioner, he requested the plaintiff to execute a waiver of the statute of limitation. This the plaintiff did, and on February 2, 1924, returned the same to the commissioner, duly executed. It was received in the commissioner's office February 4, 1924. On February 28, 1924, a notation was made in the record of plaintiff's case in the bureau by the supervising auditor who was charged with the duty of reviewing the audits of plaintiff's case that there was a waiver of the statute of limitation on file.

March 8, 1924, the commissioner mailed plaintiff the usual thirty-day deficiency letter giving it thirty days thereafter within which to file a protest or appeal with reference to the proposed deficiency. The plaintiff's case appears to have proceeded in the usual way in the bureau with full knowledge of the officials that the statutory period of limitation would expire April, 1924, and that plaintiff had executed and filed a waiver. The facts and circumstances justify the conclusion that no action was taken to assess and collect the tax before April 17, 1924, for the reason that there was a valid waiver on file.

Whether the plaintiff filed a protest to the deficiency proposed in the letter of March 8, 1924, does not appear, but it does appear that shortly thereafter the commissioner duly signed an assessment list in which he made an assessment of a deficiency of $28,938.21 against the plaintiff for 1918. This assessment list contained a statement under the column headed "Remarks" that there was a waiver, and also referred to the account number of p...