Petition by Spencer K. Mulford to review an order of the United States Board of Tax Appeals affirming action of the Commissioner of Internal Revenue fixing a deficiency in petitioner's income tax for the year 1917.
Before BUFFINGTON, DAVIS, and THOMPSON, Circuit Judges.
This case is here on petition to review the order of redetermination of the United States Board of Tax Appeals. The question at issue is whether or not the waiver filed by the taxpayer for the year 1917 is valid.
The petitioner filed his income tax return in March, 1918, for the calendar year of 1917, but the return was not then audited, and before his actual liability was determined, the statute of limitations for assessment for that year was about to expire and he was requested to execute a waiver. This he did on February 5, 1923, as follows:
"Income and Profits Tax Waiver.
"In pursuance of the provisions of subdivision (d) of Section 250 of the Revenue Act of 1921 Spencer K. Mulford of Wyncote, Penna., and the Commissioner of Internal Revenue, hereby consent to a determination, assessment, and collection of the amount of income, excess-profit or war-profits taxes due under any return made by or on behalf of the said --- for the years --- or under prior income, excess-profits, or war-profits tax Acts, or under Section 38 of the Act entitled 'An Act to provide revenue, equalize duties, and encourage the industries of the United States, and for other purposes', approved August 5, 1909, irrespective of any period of limitations.
"This waiver expires one year from date. "[Signed] Spencer K. Mulford, Taxpayer.
"By D. H. Blair, Commissioner."
On December 10, 1923, the taxpayer executed another waiver expressly covering the year 1917. This waiver by its terms expired December 31, 1924. On December 8, 1924, a third waiver, covering the year 1917, was executed and filed, extending the limitation to December 31, 1925.
The deficiency of $36,354.47 here involved was assessed December 23, 1925, eight days before the expiration of the last waiver. A claim in abatement was filed, but this was rejected on November 4, 1927, and the petition in this case was filed by the taxpayer the same day. The board determined that the waivers were valid and the petitioner owed the deficiency of $36,354.47.
The petitioner says that the deficiency for the calendar year of 1917 is barred from assessment and collection by the expiration of the statute of limitations and that it was not extended by the first waiver of February 5, 1923.
This contention is based upon the assumption that this waiver is not applicable to the year 1917 or to any particular year because no year is mentioned in the waiver; that it was void for uncertainty and the omission of the year cannot be supplied by parol evidence or inference; ...