Swall v. Commissioner of Internal Revenue, 9758.
| Decision Date | 20 August 1941 |
| Docket Number | No. 9758.,9758. |
| Citation | 122 F.2d 324 |
| Parties | SWALL v. COMMISSIONER OF INTERNAL REVENUE. |
| Court | U.S. Court of Appeals — Ninth Circuit |
Kimble & Thomas, of Fresno, Cal., and Roberts & McInnis, of Washington, D. C., for petitioner.
Samuel O. Clark, Jr., Asst. Atty. Gen., and Sewall Key, Lee A. Jackson, and Carl J. Marold, Sp. Assts. to Atty. Gen., for respondent.
Before DENMAN, MATHEWS, and STEPHENS, Circuit Judges.
Petitioner, Arthur Swall, seeks reversal of a decision of the Board of Tax Appeals denying a petition to vacate a decision which, on petitioner's own motion, dismissed a proceeding for redetermination of a deficiency in respect of his income tax for 1925. Hereafter, for brevity's sake, the decision dismissing the proceeding for redetermination will be called the first decision, and the decision denying the petition to vacate it will be called the second decision.
The first decision was rendered on September 30, 1933. No petition to review it was ever filed. The time within which such a petition might have been filed expired on December 30, 1933. Revenue Act of 1926, § 1001(a), Revenue Act of 1932, § 1101, 26 U.S.C.A.Int.Rev. Acts, page 311. Hence the first decision became final on December 30, 1933. Revenue Act of 1926, § 1005(a), 26 U.S.C.A. Int.Rev.Acts, page 314. The petition to vacate the first decision was filed on September 23, 1940. Thereafter the second decision was rendered and a petition to review it was filed in this court.
The first decision having become final before the petition to vacate it was filed, the Board was powerless to grant the petition and we are powerless to require the Board to do so. Helvering v. Northern Coal Co., 293 U.S. 191, 193, 55 S.Ct. 3, 79 L.Ed. 281. Insofar as it supports a contrary view, La Floridienne J. Buttenbach & Co. v. Commissioner, 5 Cir., 63 F.2d 630, cited by petitioner, was in effect overruled by Helvering v. Northern Coal Co., supra. We are of opinion, however, that, having no power — which is to say, no jurisdiction — to grant the petition to vacate, the Board, instead of denying it, should have dismissed it for want of jurisdiction.
The second decision is accordingly modified so as to dismiss the petition for want of jurisdiction and, as thus modified, is affirmed.
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March v. Comm'r of Internal Revenue (In re Estate of Branson)
...that the Tax Court of the United States was “not a court at all but merely an administrative agency”. Id. at 98; accord Swall v. Commissioner, 122 F.2d 324 (1st Cir.1941); Sweet v. Commissioner, 120 F.2d 77 (1st Cir.1941). Other appellate courts had ruled similarly, applying the same reason......
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Estate of Smith v. Commissioner of Internal Revenue, 123 T.C. No. 2 (U.S.T.C. 7/13/2004), 19200-94.
...v. Dobra (C. C. A.) 62 F.(2d) 116. [Id. at 630-631.] Whereas the Courts of Appeals for the Ninth Circuit stated in Swall v. Commissioner, 122 F.2d 324, 324-325 (9th Cir. 1941), that La Floridienne J. Buttgenbach & Co. v. Commissioner, supra, was "in effect overruled by Helvering v. Northern......
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Smith v. Comm'r of Internal Revenue (In re Estate of Smith) , 19200–94.
...v. Dobra (C.C.A.) 62 F.2d 116. [ Id. at 630–631.]Whereas the Courts of Appeals for the Ninth Circuit stated in Swall v. Commissioner, 122 F.2d 324, 324–325 (9th Cir.1941), that La Floridienne J. Buttgenbach & Co. v. Commissioner, supra, was “in effect overruled by Helvering v. Northern Coal......
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Toscano v. CIR
...to follow mandate of the Circuit Court of Appeals, Crews v. C.I.R., 10 Cir., 1941, 120 F.2d 749; ground not stated, Swall v. C.I.R., 9 Cir., 1941, 122 F.2d 324. Nor can a comparable result be had by an independent lawsuit, Schaffner v. Bingler, 3 Cir., 1959, 268 F.2d 76 (alternative holding......