Monjar v. Commissioner of Internal Revenue, 78.

Citation140 F.2d 263
Decision Date31 January 1944
Docket NumberNo. 78.,78.
PartiesMONJAR v. COMMISSIONER OF INTERNAL REVENUE.
CourtUnited States Courts of Appeals. United States Court of Appeals (2nd Circuit)

James Craig Peacock, of Washington, D. C., for petitioner.

Samuel O. Clark, Jr., Asst. Atty. Gen., and Sewall Key, J. Louis Monarch, and F. E. Youngman, Sp. Assts. to the Atty. Gen., for respondent.

Before L. HAND, CHASE, and FRANK, Circuit Judges.

CHASE, Circuit Judge.

This is a petition to review a decision of the Tax Court of the United States, entered May 11, 1943, denying the petitioner's motion for leave to file a motion to open a default order and to redetermine a deficiency in his income taxes for 1927. Another aspect of this case was before this court a year ago. Monjar v. Higgins, 2 Cir., 132 F.2d 990.

In 1929 the Commissioner determined a large deficiency upon an audit of the petitioner's income tax return, to which he added a delinquency penalty. The taxpayer filed a petition for redetermination which the Commissioner answered and the case was set for hearing before the Board of Tax Appeals. On May 19, 1932, a scant two weeks before the scheduled hearing, the taxpayer was adjudged a voluntary bankrupt, and on the advice of a public accountant licensed to practice before the Board made no appearance at the hearing on May 31, 1932. He says his failure to appear was due to advice from his counsel that under a very recent regulation promulgated by the Commissioner it was unnecessary for a taxpayer who had been adjudicated a bankrupt to prosecute to conclusion a petition for redetermination pending before the Board. The Commissioner was present by his attorney and, when no one appeared for the taxpayer, moved for a dismissal of the petition. The motion was granted on June 2. The Commissioner thereafter assessed the deficiency plus interest, and filed with the referee in bankruptcy a proof of claim in the amount of $116,348.43. The referee's final report showing receipts and disbursements in trivial amounts was confirmed by the District Court and on January 29, 1936, the bankruptcy proceeding was closed. The bankrupt did not apply for a discharge and none has ever been granted to him. The appellant thereafter made large payments on the deficiency assessment and then filed claims for refund which were rejected. His suit to recover the payments he had made was then brought and dismissed for lack of jurisdiction. Monjar v. Higgins, D. C., 39 F. Supp. 633. On his appeal to this court we affirmed the judgment, holding that under 322 (c) of the Revenue Act of 1928, 26 U.S.C.A. Int.Rev.Acts, page 436, the suit was barred because the taxpayer had filed with the Board of Tax Appeals a petition for review of the determination of the deficiency assessed against him, and we now refer to that opinion. Monjar v. Higgins, supra. We observed in passing that his only hope for recovery appeared to be an application to the Tax Court to open the default and redetermine the deficiency, but reserved decision as to the availability of that remedy. He followed the suggestion and we now must decide the point before left open.

The Tax Court's order of May 11, 1943, now sought to be reviewed contains only the single word "Denied" and so gives no hint whether the denial was the result of exercise of discretion or was based upon a supposed want of power. Some question is made by the Commissioner as to our jurisdiction to entertain the petition, on the ground that the Tax Court's order was not a "decision" within the meaning of § 1117 of the Internal Revenue Code, 26 U.S.C.A. Int.Rev.Code, § 1117, which this court may review. We think it is to be treated for the purpose of this petition as a decision dismissing a proceeding for lack of jurisdiction and pass at once to a consideration of whether the Tax Court had power to open the default judgment entered in 1932.

The taxpayer relied heavily upon a decision of the fifth circuit, La Floridienne J. Buttgenbach & Co. v. Commissioner, 5 Cir., 63 F.2d 630, 631, holding that in a somewhat analogous case the Board of Tax Appeals could reopen an order redetermining a tax deficiency and reinstate the matter for hearing after the decision had become final under § 1005 of the Revenue Act of 1926, 26 U.S.C.A. Int.Rev. Code, § 1140. Without doubt it closely resembles the instant case in several respects, but it...

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11 cases
  • March v. Comm'r of Internal Revenue (In re Estate of Branson)
    • United States
    • U.S. Tax Court
    • July 13, 1999
    ...the same reasoning. See, e.g., White's Will v. Commissioner, 142 F.2d 746 (3d Cir.1944), affg. 40 B.T.A. 664 (1939); Monjar v. Commissioner, 140 F.2d 263 (2d Cir.1944), affg. an unreported Order of the Board of Tax Appeals; Denholm & McKay Co. v. Commissioner, 132 F.2d 243 (1st Cir.1942), v......
  • Toscano v. CIR
    • United States
    • U.S. Court of Appeals — Ninth Circuit
    • April 28, 1971
    ...excusable neglect, Lasky v. C.I.R., 9 Cir., 1956, 235 F.2d 97, affirmed, 1957, 352 U.S. 1027, 77 S.Ct. 594, 1 L.Ed.2d 598; Monjar v. C.I.R., 2 Cir., 1944, 140 F.2d 263; McCarthy v. C.I.R., 7 Cir., 1943, 139 F.2d 20; intervening change in the law, White's Will v. C.I.R., 3 Cir., 1944, 142 F.......
  • Hanover Ins. Co. v. U.S.
    • United States
    • U.S. Court of Appeals — First Circuit
    • May 3, 1989
    ...352 U.S. 1027, 77 S.Ct. 594, 1 L.Ed.2d 598 (1957); White's Will v. Commissioner, 142 F.2d 746, 748-49 (3d Cir.1944); Monjar v. Commissioner, 140 F.2d 263,265 (2d Cir.1944); McCarthy v. Commissioner, 139 F.2d 20, 21-22 (7th Cir.1943); Denholm & McKay Co. v. Commissioner, 132 F.2d 243, 246-47......
  • Pulitzer v. Commissioner
    • United States
    • U.S. Tax Court
    • August 24, 1987
    ...vitality is open to serious question. See Toscano v. Commissioner, supra at 932; Monjar v. Commissioner 44-1 USTC ¶ 9168, 140 F.2d 263 (2d Cir. 1944), affg. an unreported order of this Petitioners' motion for leave to file a motion to vacate our decision entered on July 8, 1985 is denied. S......
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