*249 This proceeding was brought to redetermine income taxes for the years 1917 and 1918 in the amounts of $2,634.01 and $6,427.34, respectively.
FINDINGS OF FACT.
The decedent filed his returns for the years 1917 and 1918 on March 27, 1918, and March 12, 1919, respectively. The decedent, domiciled in the State of Mississippi, died testate on October 20, 1919. Under the provisions of the decedent's will Henry Kline was appointed executor thereof and duly qualified as such on October 23, 1919. By order of the Chancery Court of Sharkey County, Mississippi, the said Kline was finally discharged as such executor on September 23, 1925. On February 13, 1923, Henry Kline, as executor, executed the following waiver:
INCOME AND PROFITS WAIVER
In pursuance of the provisions of subdivision (d) of Section 250 of the Revenue Act of 1921 Ben Pearl of Anguilla, Miss., and the Commissioner of Internal Revenue hereby consent to a determination, assessment, and collection of the amount of income, excess profits, or war-profits taxes due under any return made*2097 by or on behalf of the said Ben Pearl for the years 1917, 1918, and 1919 under the Revenue Act of 1921, 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.
(Signed) BEN PEARL, taxpayer.
By HENRY KLINE, Executor.
APPROVED Oct. 3, 1923
(Signed) D. H. BLAIR,
Commissioner of Internal Revenue.
*250 On February 11, 1924, the said Kline as "administrator" executed the same form of waiver covering the year 1918. In February, 1924, the respondent assessed a deficiency of $2,634.01 in income tax for the year 1917 and in January, 1925, he assessed a deficiency of $6,427.34 for the year 1918. A 60-day deficiency letter of the respondent rejecting the petitioner's claim for abatement of the deficiencies for the years 1917 and 1918 was mailed to the petitioner on March 30, 1926.
OPINION.
VAN FOSSAN: The original petition in this proceeding raised the single issue of the statute of limitations. By his answer the respondent*2098 alleged the filing of waivers. At the hearing the sole issue was stated to be the validity of the waivers executed by the executors of the deceased taxpayer, it being contended that under the laws of the State of Mississippi the executor was without power to execute the same. This question was decided adversely to petitioner's contention in , where we held such waivers valid, regardless of the state law limiting the power of the executor.
Subsequent to the original hearing the petitioner was granted a further hearing and raised the question of the applicability of the decision of the Supreme Court in the case of , as to the year 1917 and amended its assignment of error by alleging in substance that no proceeding for the collection of the tax claimed for 1917 was instituted within five years from the date of the filing of the return or within the period of five years as extended by the waiver. It was also alleged that the assessment of the deficiency was made before the enactment of the Revenue Act of 1924.
From the facts before us it appears that the return for*2099 1917 was filed on March 27, 1918; that an unlimited waiver was executed on February 13, 1923, and that the assessment was made during February, 1924. The Revenue Act of 1924 was passed June 2, 1924. Under the terms of an office letter addressed by the Commissioner to collectors of internal revenue and others all unlimited waivers for 1917 expired April 1, 1924. . Though the assessment was prior to the expiration of the waiver, this priority did not prevent the running of the statute against collection. ;The burden of proving existing exceptions to the statute of limitations being on the respondent (; ; ), and no *251 facts appearing to prevent the tolling of the statute, the collection of the tax for the year 1917 is barred.
The assessment of the tax for 1918 was made after the enactment of the Revenue Act of 1924. We have held*2100 that the waiver signed by the executor was valid. It follows that the statute of limitations did not run as to the collection of the tax for 1918.
Decision of no deficiency for the year 1917 will be entered. Decision will be entered for the respondent as to the year 1918.