Houston Street Corp. v. Commissioner of Internal Rev., 8014.

Decision Date15 July 1936
Docket NumberNo. 8014.,8014.
Citation84 F.2d 821
PartiesHOUSTON STREET CORPORATION v. COMMISSIONER OF INTERNAL REVENUE.
CourtU.S. Court of Appeals — Fifth Circuit

Robert Ash, of Washington, D. C., for petitioner.

Robert N. Anderson and Sewall Key, Sp. Assts. to Atty. Gen., and Herman Oliphant, Gen. Counsel, for Department of Treasury, and L. W. Creason, Sp. Atty., Bureau of Internal Revenue, both of Washington, D. C., for respondent.

Before FOSTER, HUTCHESON, and WALKER, Circuit Judges.

FOSTER, Circuit Judge.

This is an appeal from a decision of the Board of Tax Appeals sustaining a motion by the Commissioner of Internal Revenue to dismiss a petition of the Houston Street Corporation for the redetermination of a deficiency for want of jurisdiction.

The question for decision is whether petitioner is to be considered a taxpayer within the meaning of the Internal Revenue laws.

The Board of Tax Appeals was created by the Revenue Act of 1924, § 900 (43 Stat. 336). Subsequent acts made changes as to procedure, provided for an appeal of a decision of the Board, but made no change in its basic jurisdiction to review a determination of deficiencies by the Commissioner. The decision of the Board is based on its interpretation of the provisions of the Revenue Act of 1926. Subsequent Revenue Acts have made no material change in the provisions of that law that are applicable to the issues presented.

The Revenue Act of 1926 provides, in substance, as follows: Section 221 (a), 44 Stat. 35: All persons, in whatever capacity acting, paying compensation or other income to any nonresident alien individual shall deduct and withhold therefrom the tax imposed thereon. Section 221 (c): Every person required to deduct and withhold any tax under the section shall make return thereof and pay the tax to the proper official. Every such person is made liable for such tax and is indemnified against the claims or demands of any person for whom payment was made. Section 221 (e): If any tax required under the section to be deducted and withheld is paid by the recipient of the income, it shall not be recollected from the withholding agent.

Section 274 (a) of the act (44 Stat. 55) provides: "If in the case of any taxpayer, the Commissioner determines that there is a deficiency in respect of the tax imposed, * * * the Commissioner is authorized to send notice of such deficiency to the taxpayer by registered mail. Within 60 days after such notice is mailed, * * * the taxpayer may file a petition with the Board of Tax Appeals for a redetermination of the deficiency." A subsequent act increased the time for filing the petition to 90 days.

Section 283 (a) of the act (44 Stat. 63) provides, in substance, that if after the enactment of this act the Commissioner determines that any assessment should be made in respect of any income, war profits, or excess profit taxes imposed by the Revenue Acts of 1916, 1917, 1918, 1921, and 1924, the Commissioner is authorized to send by registered mail to the person liable for such tax notice of the amount proposed to be assessed, which notice shall, for the purpose of this act, be considered a notice under subdivision (a) of section 274 of this act. This provision was not repeated in any subsequent Revenue Act nor was it necessary to do so. It merely made the provision for an appeal to the Board retroactive for the benefit of taxpayers in the years prior to the creation of the Board.

The Commissioner made a jeopardy assessment against petitioner of deficiencies in taxes for the years 1927 to 1933, inclusive, totaling $11,766.72, for not withholding taxes on compensation paid to two nonresident aliens, and issued the usual letter, advising petitioner of the assessment and that within 90 days it could file a petition with the United States Board of Tax Appeals for a redetermination of the deficiency. The statement accompanying the letter notified the petitioner...

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8 cases
  • Continental Oil Co. v. Helvering
    • United States
    • U.S. Court of Appeals — District of Columbia Circuit
    • October 3, 1938
    ...Joaquin Fruit & Investment Co., 9 Cir., 52 F.2d 123, 127, 128. See, also, Nauts v. Clymer, 6 Cir., 36 F.2d 207; Houston Street Corporation v. Commissioner, 5 Cir., 84 F.2d 821. 31 See Ford Motor Co. v. United States, Ct.Cl., 9 F.Supp. 590, 603, certiorari denied 296 U.S. 636, 56 S.Ct. 170, ......
  • Gooch Milling & Elevator Co. v. Commissioner of Int. Rev.
    • United States
    • U.S. Court of Appeals — Eighth Circuit
    • January 29, 1943
    ...v. Commissioner, supra; Bishoff v. Commissioner, 3 Cir., 27 F.2d 91; Cook v. United States, 5 Cir., 108 F.2d 804; Houston Street Corp. v. Commissioner, 5 Cir., 84 F.2d 821. In Blair v. Oesterlein the Supreme Court, in speaking of the power of the Board, said 275 U.S. 220, 48 S.Ct. 89, 72 L.......
  • Enochs v. Green
    • United States
    • U.S. Court of Appeals — Fifth Circuit
    • September 25, 1959
    ...distraint for the collection of such penalty could be enjoined unless a deficiency notice had been given. Houston Street Corporation v. Commissioner, 5 Cir., 1936, 84 F.2d 821; G.C.M. 17274, C.B. 1937-1, p. 159. Such is not the case before us. The fund for which the appellee was responsible......
  • S-K Liquidating Co.  v. Comm'r of Internal Revenue
    • United States
    • U.S. Tax Court
    • July 30, 1975
    ...is a ‘taxpayer’ for purposes of a petition to the Tax Court contesting its liability for withheld taxes. Houston Street Corp. v. Commissioner, 84 F.2d 821 (5th Cir. 1936), revg. a Memorandum Opinion of this Court; see also Enochs v. Green, 270 F.2d 558, 561 (5th Cir. 1959). However, the wit......
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