dissenting: My objection to the opinion and decision in this case goes back to the opinion appearing in 28 B.T.A. 247 and not to the decision on the issue discussed in the foregoing opinion. In my opinion the entire .case was before the Board. The proceeding reported in 28 B.T.A. above referred to in my mind was properly before the Board when the Chairman referred the orders referred to in the above opinion to'the Board for consideration.
This case involves the question as to whether a corporation, dissolved as this one was and completely dead (see Crossman v. Vivienda Water Co., 89 Pac. 335; Van Landingham v. United Tuna Packers, 208 Pac. 977; Hogan v. Superior Court, 241 Pac. 587, and other cases decided by the Supreme Court of California), could file an appeal with the Board; that is, whether the prior proceeding which was reported in 10 B.T.A. 690 constitutes an appeal instituted by the Navarro Lumber Co. In my opinion the question as to whether the Board had jurisdiction in the case of the Navarro Lumber Co. is not conclusive. The notice of deficiency being addressed to the Navarro Lumber Co., that company being completely dead at that time, and the proceeding being-instituted by trustees not for the Navarro Lumber Co., but for the creditors and stockholders of that company, even if they had the effect of giving the Board jurisdiction to hear the proceeding, do not mean that the Board had jurisdiction of the Navarro Lumber Co. Conceding that the Board had jurisdiction of the parties before it, if the Navarro Lumber Co. was not before it (he Board did not have jurisdiction of that company, and if it did not have jurisdiction of the company the statute of limitations bars any proceeding against the transferees. The opinion' refers to the individuals as being trustees for the corporation. This is contrary to the statute and the decisions of California. They were trustees for creditors and stockholders and had no power whatever to act *986in the corporation’s name or for the corporation. Whether we had jurisdiction of a proceeding instituted by these individuals having authority to act for' creditors and stockholders has no relation to the question of our jurisdiction over the corporation. The transferor corporation itself was not before us, it being dead. It is admitted that the petitioners herein are transferees, the only real question being as to whether the statute of limitations has run against them.
A proceeding filed with the Board under the 1924 Act with respect to the Navarro Lumber Co. would not have the effect of extending the statute of limitations as to transferees of that corporation unless that corporation itself filed the appeal, or unless it was filed by persons authorized by law to act for it. If that corporation was never before the Board, notwithstanding the fact that we may have had jurisdiction to determine the question of the tax liability of those who were before us, we had no jurisdiction with respect to that company, and the running of the statute was not suspended while the proceeding was before the Board. While section 277 of the 1928 Act contains a provision that the statute will be suspended if a proceeding with respect to a deficiency is placed on the docket-of the Board until the decision of the Board becomes final, there was no such provision in either the 1924 or the 1926 Act.
I do not think that a corporation which is completely dead can be estopped (see Newport Co. v. Commissioner, 22 B.T.A. 833; affirmed 65 Fed. (2d) 925), and although certain individuals purporting to act for the corporation may have given us jurisdiction in so far as those persons who appeared before us were concerned, in my opinion, that fact can not preclude the defense that the statute of limitations has run against the corporation. And when the statute has run against a corporation, a transferor, section 280 provides a specific limitation as to when the statute runs against the transferee. Under this statute the period had expired before' any action was taken against these transferees. Under section 400 of the Civil Code of California, which governs in this case, the Navarro Lumber Co. was Completely dissolved by a decree of the court and the directors or managers of the corporation at the time of its dissolution were trustees for the creditors and stockholder,¡s and not trustees for the corporation. Therefore the persons who instituted the appeal when the Navarro Lumber Co. case was before the Board were not acting for the corporation and had no power to so act. All of the facts relating to this matter were fully disclosed in the proceedings before the Board. From the face of the petition and the power of attorney and other papers it was apparent that the Navarro Lumber Co. was completely dead. While the proceeding was filed in its name, that could not make it live. .
*987In the case of Kieckhefer v. United States, 4 Fed. Supp. 1013, the Court of Claims held that, in the case of a dissolved corporation which was completely dead, being without authority to execute a waiver in its own behalf, “ It necessarily follows that no agent could act for it in that regard.” In this case if the Navarro Lumber Co. could not act in its own behalf, no agent could act for it. See also Newport Co., supra.
The fact is that no one even pretended to give authority to institute the proceedings before this Board in the previous proceeding-under the 1924 Act. The trustees for the stockholders - and creditors gave Heberle the power of attorney to act before the Treasury. Under that authority he not only acted before the Treasury, but before this Board, setting out, however, a full and complete statement of his authority and the facts as to the dissolution of the corporation. But the individuals giving such authority had no such power to act themselves in behalf of the corporation. This appears of record. The fact is there was no corporation. Its existence was not continued after the decree. There was no one with authority to bring an action in the name of the corporation or to defend in its name. Those individuals could act only for the creditors or the stockho'ders.
For the foregoing reasons I think the Board was in error i i the case reported in 28 B.T.A. 247, which is impliedly affirmed in the foregoing opinion.