*1858 Where the person filing the petition is not shown to have authority to act for the taxpayer, the petitioner will be dismissed for lack of jurisdiction.
*379 This proceeding is for a redetermination of an estate tax wherein the deficiency asserted by the Commissioner in the deficiency notice is in the amount of $30,972.77. At the hearing the respondent moved to increase the deficiency to the extent of $42.09.
The substance of the assignments of errors, and the issues involved may be briefly stated as follows:
1. Under the law, must the whole, or only the decedent's one-half of a community estate, held by residents of California, be included in the gross estate of the decedent?
*380 2. Where the administrator, in his original return, showed and paid an estate tax of $11,021.43, and the Commissioner thereafter assessed an additional tax of $33,442.27, and the administrator paid an additional tax of $1,919.50, and filed a claim for abatement of the additional tax assessed, and the Commissioner thereafter abated said additional assessment*1859 to the extent of $31,522.77 and refunded to the administrator as overpaid tax $450, and thereafter reasserted the original deficiency, is the Commissioner estopped from so reasserting such original deficiency after such a closure of the case, and after the administrator had distributed the assets of the estate to the beneficiaries and been discharged by the probate court?
3. A question of limitation is also presented.
The case was submitted on the allegations in the petition, and admissions in the answer, together with certain stipulations of fact dictated into the record, from which we make the following findings of fact.
FINDINGS OF FACT.
John R. Hanify died on the 6th day of May, 1922, in the city of San Francisco. His total estate which was all community property under the laws of California, aggregated in value approximately $2,200,000, with a net valuation after deductions, of $899,546.27. John L. Reed was appointed, qualified and acted as administrator of the estate. In due time, on May 5, 1923, he filed the estate-tax return, and paid the tax thereon shown to be due in the amount of $11,021.43.
Thereafter on February 13, 1924, the Commissioner assessed an*1860 additional estate tax on said estate in the amount of $33,442.27, and notified the administrator of such action. In response to such notice, the administrator paid $1,919.50, and filed a claim for abatement of the additional assessment to the extent of $31,522.77. Thereafter on July 24, 1925, the Commissioner allowed said claim in abatement and the administrator was so notified, and, as a result of the adjustments made at that time, the Commissioner refunded to the administrator $450 as overpaid tax, together with interest in the amount of $42.09.
The deficiency notice was mailed to John L. Reed, administrator of the estate of John R. Hanify, and dated September 4, 1926. The amount of said deficiency was assessed by the Commissioner on September 4, 1926.
In the event it be held that the refund of $450 was in error, and should be repaid as a part of the deficiency, then there was also paid to the administrator at the same time $42.09, interest on the amount of that refund, which $42.09 is not included in the deficiency, notice *381 of which was mailed to the administrator, and motion was duly made by respondent at the hearing to increase the deficiency to that extent.
*1861 John L. Reed, as administrator of the John R. Hanify estate, made his final report to the proper probate court and under orders of that court made final distribution of the assets of the estate to its beneficiaries, and was discharged by the court as administrator by order dated October 30, 1923.
John L. Reed, as administrator, did not appeal to the Board, but the names of Martha M. Hanify, Aloysius Hanify, and Josephine Maher, who were beneficiaries and distributees of the estate, together with John L. Reed, were signed to the petitioner.
OPINION.
LOVE: In this proceeding no question is raised by either party with reference to the jurisdiction of the Board.
However, it is apparent from the record that the taxpayer, the estate of John R. Hanify, did not appeal from the deficiency asserted by the Commissioner, notice of which was mailed to John L. Reed as administrator of said estate. It is true that John L. Reed's name is signed to the petition presented to the Board, but only as an individual, and not officially as administrator. Had he signed officially, although he had been discharged by the probate court, the case might have been brought within the provisions of*1862 section 317(a)(b)(c)(d) of the Revenue Act of 1926.
In view of the situation disclosed by the record in this case, and on authority of , and cases therein cited, it must be and is held that the Board has no jurisdiction in this proceeding, and the case is dismissed for lack of jurisdiction.