Sanborn v. Helvering, 11550.
| Decision Date | 23 January 1940 |
| Docket Number | No. 11550.,11550. |
| Citation | 108 F.2d 311 |
| Parties | SANBORN v. HELVERING, Com'r of Internal Revenue. |
| Court | U.S. Court of Appeals — Eighth Circuit |
Charles E. Whittaker, of Kansas City, Mo. (Henry N. Ess and Watson, Ess, Groner, Barnett & Whittaker, all of Kansas City, Mo., on the brief), for petitioner.
Harry Marselli, Sp. Asst. to Atty. Gen. (Samuel O. Clark, Jr., Asst. Atty. Gen., and Sewall Key, Sp. Asst. to Atty. Gen., on the brief), for respondent.
Before STONE, SANBORN, and THOMAS, Circuit Judges.
This is a proceeding to review a decision of the Board of Tax Appeals (39 B.T.A. 721) sustaining the liability asserted against Marie Minor Sanborn, "as transferee and/or fiduciary", for a deficiency in income taxes of the estate of her father, William E. Minor, for the year 1929, which she contends is barred by the statute of limitations.
The facts are stipulated. William E. Minor, a resident of Kansas City, Missouri, died December 15, 1928. The petitioner and J. A. Minor were appointed executrix and executor of his estate January 2, 1929, by the Probate Court of Jackson County, Missouri. On March 4, 1930, the petitioner, as executrix, was granted an extension of time to May 15, 1930, within which to file the income tax return of the estate for 1929. On March 31, 1930, the petitioner, as executrix, and J. A. Minor, as executor, received their discharge from the Probate Court. On April 9, 1930, "Mrs. Marie M. Sanborn, Executrix, Estate of Dr W. E. Minor, Deceased," filed an income tax return of the estate for the year 1929. The return was verified on April 8, 1930, by the petitioner and J. A. Minor as "Executors". April 8, 1932, the Commissioner, by letter, proposed a deficiency in income taxes of the estate for 1929 of $34,543.16. On May 27, 1932, the petitioner and J. A. Minor, as "former executrix and executor" of the estate, filed with the Board a petition for redetermination of the proposed deficiency. In their petition they recited that they "were the executrix and executor of the Estate of Dr. William E. Minor, Deceased, under the will, until discharged upon the closing of the estate March 31, 1930." The petition was served upon the Commissioner the day it was filed. In his answer thereto, he admitted the discharge of the executors on March 31, 1930, as alleged in the petition. The proceeding before the Board was entitled, "Marie Minor Sanborn and J. A. Minor, former executrix and executor of the Estate of Dr. William E. Minor, Petitioners, v. Commissioner of Internal Revenue, Respondent." Thereafter the Board determined that the amount of the deficiency in income taxes of the estate for the year 1929 was $22,295.50. On June 25, 1936, the petitioner and J. A. Minor, "as former executrix and executor" of the estate, filed a petition with this Court for a review of the decision of the Board. This Court affirmed. 8 Cir., 88 F.2d 134. A petition for certiorari was denied, 301 U.S. 700, 57 S.Ct. 930, 81 L.Ed. 1355, on May 24, 1937.
On July 17, 1936, the Commissioner assessed the amount of the deficiency as determined by the Board, together with interest, against the estate of William E. Minor. A warrant of distraint against the estate was issued on August 10, 1936, and was returned unsatisfied, with the statement that the estate had been distributed and there were no assets out of which the tax could be satisfied. The petitioner had received from the estate property worth approximately $500,000. On September 22, 1937, the Commissioner sent a notice to the petitioner proposing to assess against her, as a transferee of assets of the estate "and/or as fiduciary of the estate of William E. Minor, deceased," the tax which had been assessed against the estate, with interest. She appealed to the Board, asserting that her liability, as transferee and fiduciary, for the tax against the estate was barred by limitations. The Board ruled against her.
The applicable Revenue Act is that of 1928, c. 852, 45 Stat. 791. Section 275(a) of that Act, 26 U.S.C.A. § 275 note, provides: "The amount of income taxes imposed by this title shall be assessed within two years after the return was filed, and no proceeding in court without assessment for the collection of such taxes shall be begun after the expiration of such period." Section 276(a), 26 U.S.C.A. § 276 (a) provides: "In the case of * * * a failure to file a return the tax may be assessed, or a proceeding in court for the collection of such tax may be begun without assessment, at any time." Section 276 (c) provides: "Where the assessment of any income tax imposed by this title chapter has been made within the period of limitation properly applicable thereto, such tax may be collected by distraint or by a proceeding in court, but only if begun (1) within six years after the assessment of the tax, * * *." Section 277, 26 U.S.C.A. § 277, provides: "The running of the statute of limitations provided in section 275 or 276 * * * shall (after the mailing of a notice under section 272(a)) be suspended for the period during which the Commissioner is prohibited from making the assessment or beginning distraint or a proceeding in court (and in any event, if a proceeding in respect of the deficiency is placed on the docket of the Board, until the decision of the Board becomes final), and for sixty days thereafter." Section 272(h), 26 U.S.C.A. § 272(h), provides that the date on which a decision of the Board of Tax Appeals becomes final shall be determined according to the provisions of Section 1005 of the Revenue Act of 1926. Section 1005(a) (3) of the Revenue Act of 1926, c. 27, 44 Stat. 9, 110, 26 U.S.C.A. § 640(a, b), provides that a decision of the Board becomes final upon denial of a petition for certiorari by the Supreme Court. Section 311 of the Revenue Act of 1928, 26 U.S.C.A. § 311, provides that the liability of an initial transferee shall be assessed not later than one year after the...
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