Edward Barron Estate Co. v. Commissioner of Int. Rev., 8486.

• Decision Date: 31 December 1937
• Docket Number: No. 8486.,8486.
• Citation: 93 F.2d 751
• Parties: EDWARD BARRON ESTATE CO. v. COMMISSIONER OF INTERNAL REVENUE.
• Court: U.S. Court of Appeals — Ninth Circuit

93 F.2d 751 (1937)

EDWARD BARRON ESTATE CO. v. COMMISSIONER OF INTERNAL REVENUE.

No. 8486.

Circuit Court of Appeals, Ninth Circuit.

December 31, 1937.

Charles S. Wheeler, Jr., of San Francisco, Cal. (W. D. Shea, Jr., of San Francisco, Cal., of counsel), for petitioner.

James W. Morris, Asst. U. S. Atty. Gen., and J. Louis Monarch, S. Dee Hanson, and M. S. Zimmerman, Sp. Assts. to Atty. Gen., for respondent.

Before GARRECHT, MATHEWS, and HANEY, Circuit Judges.

HANEY, Circuit Judge.

This appeal is from a decision of the Board of Tax Appeals wherein by order, upon motion, petitioner's alleged petition for redetermination of a deficiency found by the Commissioner in its income tax for the year 1932, in the sum of $43,279.67, was dismissed, for lack of jurisdiction.

On September 4, 1935, the Commissioner of Internal Revenue mailed to the taxpayer a notice of deficiency in income taxes for the calendar year 1932 in the amount of $43,279.67. The statutory period of ninety days from such mailing within which a petition for redetermination could be filed under the provisions of section 272(a) of the Revenue Act of 1932, 47 Stat. 233, as amended by section 501 of the Revenue Act of 1934, 48 Stat. 755, expired on December 3, 1935.

On December 3, 1935 at 5:10 p.m., Pacific Standard Time, the petitioner, through its president, delivered to the Western Union Telegraph Company at its San Francisco office a telegram, comprising the skeleton of a petition for redetermination of the above deficiency, addressed to "Eugene Black, Chairman U. S. Board Tax Appeals, Washington, D. C.," with instructions accompanying the same, as follows: "(phone and deliver wire to Mr. Eugene Black at 5206 Colorado Avenue Northwest Wash D. C. report delivery)."

The office of the Board of Tax Appeals, hereinafter called the Board, closes at 4:30 p.m., Eastern Standard Time.

At 9 p.m., Eastern Standard Time, on said day, Eugene Black was called to the telephone at his residence, in Washington, D. C., and the said telegram read to him. The operator immediately upon completing the reading of the telegram, asked Chairman Black if he desired the telegraph company to deliver the telegram to him at his home address, and he replied, "No, send it to the office in the morning."

On December 4, 1935, at 7:45 a.m., a copy of the telegram in question was delivered to that room in the Internal Revenue building which is used by the government for the receipt and delivery of official telegrams for certain government offices, including the Board of Tax Appeals, but which has no connection with the office of the Board. Such official telegrams are received at said room on a machine known as a "Simplex Printer," which machine is connected with the telegraph company by direct wire. A government employee in that room then copies the message as it is typed on the said machine, and such copy is then forwarded by government messenger to the office for which the same is intended. This telegraph room is open from 7:30 a.m. to 7 p.m.

On December 4, 1935, upon his arrival at the office of the Board, Chairman Black was handed this copy of the telegram, which bore on it the telegraph company's notation that it had been telephoned to him. Upon reading it, he recognized it as the one which had been read to him over the telephone the evening before, and he instructed the Chief Deputy Clerk to file and docket the said telegram as received by the Board on December 3, 1935, which was done. At that time, Chairman Black did not know that December 3d was the ninetieth and last day for the filing of said petition.

On December 4, 1935, the taxpayer forwarded by registered mail to the Board an "Amended Petition," together with its check for $10 in payment of the filing fee for the original petition, which had not theretofore been paid, both of which were thereafter received at the office of the Board.

The question for our consideration is one of jurisdiction. Did the taxpayer comply with the requirements of the applicable statutes? Revenue Act 1932, § 272, 47 Stat. 233, 234, provides as follows:

"(a) If in the case of any taxpayer, the Commissioner determines that there is a deficiency in respect of the tax imposed by this title, the Commissioner is authorized to send notice of such deficiency to the taxpayer by registered mail. Within 60 days amended to read `90 days' by section 501 of the Revenue Act of 1934, c. 277, 48 Stat. 755 after such notice is mailed (not counting Sunday as the sixtieth day) amended to read `(not counting Sunday or a legal holiday in the District of Columbia as the ninetieth day)' by section 501 of the Revenue Act of 1934, c. 277, 48 Stat. 755, the taxpayer may file a petition with the Board of Tax Appeals for a redetermination of the deficiency. * * *

"(c) If the taxpayer does not file a petition with the Board within the time prescribed in subsection (a) of this section, the deficiency, notice of which has been mailed to the taxpayer, shall be assessed, and shall be paid upon notice and demand from the collector."

If the taxpayer filed a petition as required by the act, asking redetermination of a deficiency theretofore determined by the Commissioner within the period limited by the act, supra, then the Board had jurisdiction to consider the petition. If such petition was not so filed within the time limited by the act, the Board was without...