*943 Under the Illinois Business Corporation Act, actions may be brought against a corporation within two years after dissolution on any liability incurred prior to dissolution. There is no provision in the Illinois statute permitting a corporation to bring an action after dissolution. Held, that, since the petition shows on its face that it was filed by a dissolved Illinois corporation, the proceeding must be dismissed for lack of jurisdiction.
*751 OPINION.
MELLOTT: The Commissioner determined deficiencies in income tax and excess profits tax of the petitioner for the years 1936, 1937, and 1938 in an amount aggregating $7,788.09, together with negligence penalties of 5 percent of the total amount of the deficiencies, under section 293(a) of the Revenue Acts of 1936 and 1938, aggregating $389.40.
*752 On June 10, 1940, petition was filed with the Board asking for a redetermination of the deficiency. The petition*944 alleges: "In the spring of 1938 it was decided to liquidate the corporation but due to the seasonal nature of the business and upon advice of counsel the petitioner continued operating as a corporation for the balance of the year 1938 although legally dissolved on June 18, 1938 * * *." (Italics ours.) The petition is verified in the following language:
ERNEST C. PIKE being duly sworn says that he was the president of S. W. Pike Seedsman, Inc., and that he is duly authorized to verify the foregoing petition; that he has read the foregoing petition, or had the same read to him, and is familiar with the statements contained therein, and that the facts stated are true, except as to those facts stated to be upon information and belief, and those facts he believes to be true.
The respondent has filed a motion to dismiss the proceeding for lack of jurisdiction on two grounds: (1) That the petitioner corporation is without power to institute or prosecute the proceeding before the Board; and (2) that the verification is not in accordance with subdivision (h) of Rule 6 of the Board's Rules of Practice (15th Ed.), which, as applicable here, reads as follows:
Where a petitioner is a*945 corporation, the person verifying shall state in his verification that he has the authority to act for the corporation.
The respondent, in support of the first ground of his motion, calls attention to section 94 of the Illinois Business Corporation Act of July 13, 1933, which reads as follows:
§ 94. Survival of remedy after dissolution. The dissolution of a corporation either (1) by the issuance of a certificate of dissolution by the Secretary of State, or (2) by the decree of a court of equity when the court has not liquidated the assets and business of the corporation, or (3) by expiration of its period of duration, shall not take away or impair any remedy given against such corporation, its directors, or shareholders, for any liability incurred prior to such dissolution if suit thereon is brought and service of process had within two years after the date of such dissolution. Such suits may be prosecuted against and defended by the corporation in its corporate name. [Sec. 32.096, Jones Illinois Statutes Annotated.]
He calls attention to a statement made by the committee which drafted the legislation to the effect that the provisions of the section quoted above "* *946 * * permit actions to be brought against a corporation, its directors, or shareholders within two years after dissolution on any liability incurred prior to dissolution, but do not permit a corporation to bring actions after its dissolution." (Italics ours.) He also cites
In the cited case it appears that an Illinois corporation, in 1934, brought an action in assumpsit. Special pleas in bar were filed alleging the plaintiff's dissolution and denying its right under the Illinois*753 law to prosecute the suit. The court dismissed the action, holding that the power of the plaintiff to maintain it had been "circumcribed by the Illinois Statute." It expressed the conclusion that "to permit the plaintiff to further maintain this action in its corporate name, even though now dissolved, would be to permit a privilege of procedure replaced by the Illinois Legislature."
It is apparent (assuming for the purpose of this motion that the facts stated in the petition are true) that the petitioner in the instant proceeding was*947 filed one year, eleven months, and twenty-two days after the corporation was dissolved. In the Billiard Table case, supra, the court points out that: "Under the admitted common-law and Federal rule, the dissolution of a corporation, ipso facto, abates pending actions in which the corporation is a party, unless there be some specific curative or saving statute [citing cases] and the laws of the corporate domicile determine its power to maintain either local or foreign actions after dissolution." The Supreme Court of Illinois has recognized the same rule, saying, in singer &
Inferentially petitioner indicates that it feels there is some analogy between suing out a writ of error under the state practice and institutint a proceeding before this Board for a redetermination of a deficiency; but no so. The institution of a proceeding before us by the filing of a petition is more rearly analogous to the filing of a suit. As stated by the court in
Respondent's motion to dismiss for lack of jurisdiction must be sustained upon the first ground. It is unnecessary to pass upon or discuss the second ground.
Order will be entered dismissing the proceeding for lack of jurisdiction.