*4026 Return for 1921 was filed March 15, 1922, and jeopardy assessment was made on February 3, 1926, the assessment resulting from a reduction of the amount of a claimed loss on the sale of property by an adjustment for depreciation. More than four years after the return was filed the Commissioner conceded that the depreciation adjustment should not have been made, but took the view that the loss should nevertheless be reduced because computed on March 1, 1913, value rather than cost, which was lower, and rejected petitioner's abatement claim in part. Held, deficiencies are identifiable as to amounts and not as to items out of which they arise, and the assessment having been made before the statute had run and after the passage of the Revenue Act of 1924, may, by virtue thereof, be collected within six years after assessment.
*884 Proceeding for the redetermination of a deficiency in income tax in the amount of $559.30 for the calendar year 1921. The respondent, in his answer, admitted all of petitioner's allegations of fact and moved for judgment*4027 on the pleadings. The case, by order, was set for hearing on the merits and on the motion of respondent. No evidence was offered at the hearing.
FINDINGS OF FACT.
Petitioner is an individual residing at Chicago, Ill.
On March 15, 1922, petitioner filed his income-tax return for the calendar year 1921. On February 3, 1926, respondent assessed $832.14 against petitioner in accordance with the provisions of section 274(d) of the Revenue Act of 1924 and on the same date notified petitioner of his right under section 279 of filing a claim in abatement within 10 days. The statement accompanying the letter of February 3, 1926, reads in part as follows:
It will be impracticable to give you the usual thirty-day notice of the proposed assessment for the year 1921 in view of the expiration at an early date of the four-year period provided by Section 277(a) of the Revenue Act of 1924, within which assessments for this year may be made. In order that the interests of the Government may not be jeopardized, assessment of the tax for the year 1921 will be made immediately.
On February 26, 1926, petitioner filed a claim for the abatement of the full amount of the tax, stating therein*4028 under oath the reasons for believing the claim should be allowed, and he also filed with the collector a bond as required by law, which was accepted by the collector.
*885 On November 23, 1926, respondent advised petitioner that it was proposed to allow the abatement claim in the amount of $272.84 and to reject it in the amount of $559.30, and further advised petitioner that he was allowed 10 days from the date of the letter in which to present a protest supported by additional evidence or a brief against the proposed rejection of the abatement claim. On December 9, 1926, petitioner notified respondent by telegram that he did not acquiesce in the proposed adjustment and would file a formal protest in a few days. On December 14, 1926, petitioner mailed to respondent a formal protest, requested a hearing, and reserved the right to submit evidence and a brief.
On January 7, 1927, two conferences were held in the office of the respondent with conferees designated by him. At these conferences petitioner's attorney discussed with said conferees two questions, namely:
(1) Whether the Commissioner is required to finally determine the amount of the income tax for the year*4029 1921 imposed against this taxpayer by the Revenue Act of 1921 within four years from the date of the filing of the income-tax return (March 15, 1922); and
(2) Whether the Commissioner has the legal power to make an adjudication or decision on a claim for the abatement of an additional income tax assessed by the Commissioner against this taxpayer for the calendar year 1921, based on a fact not in issue between the Commissioner and the taxpayer, and not involved in the controversy between the Commissioner and the taxpayer, which was originated by the filing of the claim for abatement and which additional tax was assessed on a ground not stated by the Commissioner as a basis or reason for assessing the additional tax, and on a ground and for a reason not disclosed by the Commissioner to the taxpayer, until after the running of the statute of limitations against the making of the assessment.
Petitioner also filed a brief against the proposed rejection of said claim for abatement.
On January 24, 1927, respondent notified petitioner that it was proposed to allow his abatement claim for $274.84 and to reject it for $559.30.
From the letter of January 24, 1927, petitioner, within*4030 the statutory period, filed an appeal with the Board.
OPINION.
ARUNDELL: Whether we consider the assessment as made under the Revenue Act of 1921 or 1924, it is clear that it was made in time. Both Acts, 250(d) of the 1921 Act and 277(a)(1) of the 1924 Act, give the Commissioner four years in which to assess taxes under the 1921 Act. In this case, the return having been filed on March 15, 1922, the assessment made on February 3, 1926, was within the statutory period.
*886 Petitioner contends that the imminence of the dropping of the bar of the statute of limitations did not relieve the Commissioner of the duty of advising him of a proposed assessment, nor did it give jurisdiction to make the assessment without notice. Section 274(d) of the 1924 Act specifically gives the Commissioner authority to make jeopardy assessments, and we have held in , that, an assessment having been made under section 274(d), we will not inquire into the basis for the Commissioner's belief that jeopardy exists.
Stress is laid on the fact that the rejection of the abatement claim was based on a fact other than that stated*4031 to the petitioner when the assessment was made. It appears from the letters attached to the pleadings and referred to therein, that the assessment was made as the result of a reduction of a claimed loss by a depreciation adjustment, and that the amount for which the claim was rejected was computed on a reduction of the loss by allowing the difference between the value of the property at the time acquired by gift in 1910 and the sales price, instead of the difference between March 1, 1913, value and sales price as claimed by petitioner.
The Commissioner has not made a new assessment or asserted a new deficiency; he has merely made a downward adjustment of the deficiency which he had determined and assessed prior to the expiration of four years after the filing of the return. The petitioner takes the position that the grounds on which the Commissioner determined the deficiency may not be departed from and that a deficiency once determined may not be supported on other or different grounds. With this we cannot agree. A deficiency, having been found and assessed, remains a deficiency until finally settled. Throughout the revenue acts, deficiencies are identifiable as amounts and*4032 not according to the items out of which they arise. This of course does not mean that the case when heard by the Board is not to be limited to the issues raised in the pleadings.
The remaining contentions of the petitioner are in substance that section 250(d) of the Revenue Act of 1921 has never been repealed and as the return was filed while that Act was in effect the Commissioner is limited in both assessment and collection to the period prescribed therein. Section 278(d) of the Revenue Act of 1924, under which the assessment in this case was made, gives the Commissioner six years after assessment in which to collect. It follows that the collection of the deficiency is not barred by the statute of limitations. See .
There being no other issue than that of the statute of limitations, judgment will be for respondent.
Judgment will be entered for the respondent.