Commissioner's action was formally communicated to the taxpayer in a certificate of overassessment distinguishes this case from the Kroyer Case, supra, and takes it out of the principles above stated. An abatement in relief of the collector made during the pendency of a contest with the taxpayer is just as much an inter-departmental matter as if made in a case where no such contest existed. Naturally, in the former case the taxpayer would be notified.
It does not appear in the evidence in the present case whether the Commissioner's action abating the tax as uncollectible on Schedule I.T. No. 1536 was taken in pursuance of a claim by the collector or not.That does not matter. The Commissioner's authority in respect of lawful but uncollectible assessments does not extend beyond relieving the collector of the charge against him for the tax. It is not easy to imagine that a taxpayer would ask for abatement of a tax as on the sole ground that it was uncollectible, but, if one should, and the Commissioner had thereupon abated it, I would have no doubt that his action would be nugatory and would not extinguish the liability.
From the foregoing it would also follow that the action evidenced by I.T. 1536 had no effect in starting the running of the two-year limitation period of section 3226, Revised Statutes, as amended (26 U.S.C.A. §§ 1672-1673).
The taxpayer's liability being unaffected by the Commissioner's action, the present case comes squarely within the provisions of section 611 of the Revenue Act of 1928 (45 Stat. 875). Here was an assessment made within the period of limitations properly applicable thereto, made prior to June 2, 1924. A claim in abatement had been filed and collection was stayed until beyond the date when the statute of limitations ran. Payment of the tax was made by a credit within one year after the enactment of the Revenue Act of 1928. It is exactly the kind of situation which section 611 was enacted to cover. As pointed out in Graham v. Goodcell, 282 U.S. 409, 51 S. Ct. 186, 75 L. Ed. 415, the purpose of that act was to extend the statutory period in respect of pending cases in which the assessment had been timely made but collection had been suspended by the taxpayer's resistance. It was a result of the decision of the Supreme Court in Bowers v. New York & Albany Lighterage Co., 273 U.S. 346, 47 S. Ct. 389, 71 L. Ed. 676, which held that the limitation period applied not only to suits at law but to collections by distraint proceedings which was a source of great embarrassment and unanticipated loss to the government.
The fact that in the present case an assessment was made within the statutory period distinguishes it from Commissioner of Internal Revenue v. U.S. Refractories Corporation (C.C.A.) 64 F.2d 69, in which no assessment had been made within the statutory period and no assessment had been made before June 2, 1924. Naturally, the plain provisions of section 611 excluded the situation presented in that case and that statute did not operate to save the tax.
What has been said makes it unnecessary to determine the fact question whether or not as a matter of fact the waiver filed by this taxpayer on December 9, 1925, was intended to include 1917 taxes.
It is also unnecessary to determine whether or not this suit was properly brought for taxes for the year 1918 instead of taxes for the year 1917. The plaintiff had to sue for the 1918 taxes in order to maintain consistency with his theory that the 1917 deficiency which was used as a credit was void. See Parks & Woolson Machine Co. v. U.S. (Ct.Cl.) 58 F.2d 868; Routzahn v. Reeves Bros. Co. (C.C.A.) 59 F.2d 915, 918; Peerless Paper Box Mfg. Co. v. Routzahn (D.C.) 22 F.2d 459; Lowe Bros. Co. v. U.S. (D.C.) 8 F.Supp. 1016.
At the hearing, the parties submitted an agreed statement of facts which are adopted by the court as special findings. In addition thereto all statements of fact made in the foregoing opinion may be taken as special findings.
The defendant's first, second, third, fourth, and fifth requests for conclusions of law are all affirmed.
The plaintiff's first, second, and sixth request for conclusions of law are denied. The plaintiff's third, fourth, and fifth requests for conclusions of law are not material and are answered.
Plaintiff's petition may be dismissed.
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