*1235 A partnership made its tax returns on the basis of a fiscal year ended August 31. A member of the firm who used a calendar year basis died June 11, 1924. Held that the executors or deceased member should include in their income-tax return for the period January 1, 1924, to June 11, 1924, a pro rata part of the earnings of the partnership up to the date of the member's death.
*842 In this proceeding the petitioners seek the redetermination of a deficiency, amounting to $39,587.43, in the income tax of the decedent for the period from January 1, 1924, to June 11, 1924, inclusive.
The issues are (1) whether or not the respondent erred by including in the decedent's income for the period in question a prorated portion of the income of a partnership derived during a fiscal year ended in 1924, and (2) whether or not the assessment of the deficiency is barred by the statute of limitations.
The facts were stipulated. From the stipulation and the exhibits attached thereto we find the following facts:
FINDINGS OF FACT.
The petitioners, residents*1236 of New York State, are the executors of the estate of James Temple Gwathmey, who died June 11, 1924. The decedent, prior to his death, was a member of the partnership of George H. McFadden & Bro., commission cotton factors, having its principal office in Philadelphia, Pennsylvania, and an office in New York City. He was the resident partner in charge of the New York City office. The partnership agreement, in effect at the time of the decedent's death, contained the following material provisions:
ARTICLE III. * * *
The interest of J. Temple Gwathmey shall be limited solely to participation in the profits of the New York Office of George H. McFadden & Bro. to the extent of fifty per cent. (50%) thereof. Said Gwathmey, as between the partners of George H. McFadden & Bro., shall be liable only for the losses of the New York Office of George H. McFadden & Bro. in the same proportion as he is entitled to share in said profits. Said Gwathmey shall have no interest or participation in the profits other than the above recited share of profits of the New York Office, nor in the assets, firm name or good will of the firm of George H. McFadden & Bro. The amount of profits and losses*1237 and the amount of business of the New York Office of George H. McFadden & Bro. shall be determined from time to time by the partners of George H. McFadden & Bro. other than said Gwathmey, and such determination shall be final and conclusive on the said Gwathmey.
ARTICLE III. In case of the death of one of the partners during the currency of any business year, his interest shall be continued until the expiration of said year, being credited with profits less withdrawals, or charged with losses plus withdrawals. At the expiration of said year the estate of said partner shall be credited with the amount which was to his credit at the last periodical ascertainment of values plus said profits less withdrawals, or minus said losses plus withdrawals.
If the business of the partnership be continued by some or all of the remaining partners by a firm composed of some or all of the remaining partners, either alone or in connection with others, the new firm shall put to the credit of the estate of the dead partner the amount thus ascertained, together with any interest upon his capital accruing since the last ascertainment of his contribution. The estate shall be a creditor of the new*1238 partnership and shall be *843 entitled to be paid one-fifth in cash at the end of the business year and the residue in four equal annual installments, with interest at the rate of eight per centum (8%) per annum, payable quarterly.
* * *
It shall be optional with the new firm to anticipate the payment of the whole or any part of the principal due to the deceased partners upon the expiration of thirty (30) days' notice to the personal representative of such deceased partners.
The books of account of the New York office prior to the year 1924 had been closed as of July 31, but in 1924 this branch changed its practice to conform to that of the Philadelphia office and for the year 1924 books were closed as of August 31. The Federal income-tax returns of the partnership, which included the operations of the New York office for the year 1924 and the prior year, were filed on the basis of a fiscal year ended August 31. The decedent used the calendar year in reporting his income on the basis of cash receipts and disbursements. The executors continued the same manner and method used by the decedent.
The surviving partners continued the business until the end of the partnership's*1239 fiscal year, August 31, 1924, and determined the decedent's share of the partnership profits in accordance with the partnership agreement to be $157,694.90 as of the closing date. The decedent had withdrawn $1,322.81 during the period January 1, 1924, to June 11, 1924, leaving a balance of $156,372.09. This latter amount was included in the total amount to which the estate became entitled under the partnership agreement as the result of an accounting and a distribution in liquidation of the partnership interests of the deceased. Said total amount was credited to the estate on the partnership boons on March 9, 1925, and paid on the same date. An agreement was also entered into on the same date between the executors and the surviving partners whereby the former released the latter from further liability beyond the total amount to which the estate was entitled. The partnership books were not closed as of the date of the decedent's death nor at any time other than at the end of its fiscal year August 31, 1924.
The decedent reported his share of the partnership profits of the New York office for its fiscal year ended July 31, 1923, in his return for the calendar year 1923.
The*1240 executors filed a return for the decedent covering the period January 1, 1924, to June 11, 1924, showing his withdrawals of $1,322.81 as income from the partnership. The respondent, upon an audit of this return, determined that the amount of $157,694.90 representing the decedent's distributive share of the partnership income as of August 31, 1924, covered the 13-month period from August 1, 1923, to August 31, 1924. He computed the 13-month period as 407 days and the period from August 1, 1923, to June 11, 1924, as 328 *844 days and determined 328/407 of $157,694.90 or $125,520.27 as the amount taxable on the return for the period January 1, 1924, to June 11, 1924. Inasmuch as $1,322.81 had been returned as income, he increased said amount by adding $124,197.56 and computed the tax partly at 1923 and partly at 1924 rates. Thereupon by a notice dated and mailed December 27, 1929, the respondent notified the petitioners of a deficiency in decedent's income tax for the period January 1, 1924, to June 11, 1924, amounting to $39,587.43.
The return covering the period January 1, 1924, to June 11, 1924, was filed in the collector's office in New York City on March 16, 1925. *1241 This return was signed "James S. Darcy, Executor." On January 26, 1929, a waiver covering this same period was filed in the office of the revenue agent in charge in New York City. This waiver reads as follows:
January 25, 1929
In pursuance of the provisions of existing Internal Revenue Laws James Temple Gwathmey, deceased, a taxpayer of New York, New York, and the Commissioner of Internal Revenue hereby consent and agree as follows:
That the amount of any income, excess-profits, or war-profits taxes due under any return made by or on behalf of the above-named taxpayer for the year January 1, 1924 to June 11, 1924, under existing acts, or under prior revenue acts, may be assessed at any time on or before December 31, 1929, except that, if a notice of a deficiency in tax is sent to said taxpayer by registered mail on or before said date, then the time for making any assessment as aforesaid shall be extended beyond the said date by the number of days during which the Commissioner is prohibited from making an assessment and for sixty days thereafter.
[Signed] JAMES TEMPLE GWATHMEY, DECEASED
Taxpayer.
BY JAMES S. DARCY,
Executor OF ESTATE OF J. T. GWATHMAY
D. *1242 H. BLAIR Commissioner
By R. MILES Revenue Agent in Charge.
The three other executors had knowledge of Darcy's execution of the waiver. James S. Darcy is an attorney who supervised the affairs of the estate relating to taxes.
None of the executors have at any time since acting in that capacity given formal notice to the respondent that they were acting in a fiduciary capacity for the decedent or his estate under section 281 of the Revenue Act of 1926, or section 312 of the Revenue Act of 1928. A certificate of the clerk of the surrogate's court dated July 6, 1927, was filed with the Bureau of Internal Revenue on January 28, 1929, certifying that letters testamentary had been issued to the executors who are the petitioners herein. This certificate was filed accompanying a power of attorney given by the executors to their accountant authorizing him to represent them when appearing before officials of the Bureau and was required to be filed under the Bureau's *845 regulations. Another similar certificate was filed in March, 1929, accompanying a power of attorney in connection with another Federal tax case involving a deficiency separate and distinct from the deficiency*1243 involved herein.
In a sworn protest dated January 23, 1929, filed in the Bureau of Internal Revenue, the petitioners herein stated that they were the executors of the estate here involved.
The decedent's share of the partnership's profits for its fiscal year ended August 31, 1924, stated hereinbefore, $156,732.09, was included in the Federal estate-tax return filed by the estate as a part of the decedent's gross estate and the proper amount of estate tax was paid thereon.
OPINION.
VAN FOSSAN: The first question for determination is whether or not the respondent properly included in decedent's income for the period commencing January 1, 1924, and ending on the date of his death, namely, June 11, 1924, a prorated share of the net income of the partnership for its fiscal year ended August 31, 1924.
The applicable statute is section 218(a) of the Revenue Act of 1924, which reads as follows:
Individuals carrying on business in partnership shall be liable for income tax only in their individual capacity. There shall be included in computing the net income of each partner his distributive share, whether distributed or not, of the net income of the partnership for the taxable*1244 year, or, if his net income for such taxable year is computed upon the basis of a period different from that upon the basis of which the net income of the partnership is computed, then his distributive share of the net income of the partnership for any accounting period of the partnership ending within the taxable year upon the basis of which the partner's net income is computed.
The decedent had used the calendar year for reporting his income on the basis of cash receipts and disbursements. The executors continued the same manner and method used by decedent. The partnership of George H. McFadden & Bro., of which the decedent was a member, filed its income-tax return on the basis of a fiscal year ending on August 31. In his return for the calendar year 1923 the decedent had reported his distributive share of the net income of the partnership for its fiscal year ended August 31, 1923. The petitioners contend that no part of the net income of the partnership for its fiscal year ended August 31, 1924, is taxable as decedent's income for the period from January 1, 1924, to the date of his death, namely, June 11, 1924, except the amount of his withdrawal during the year 1924 before*1245 his death.
The petitioners rely on . Louis J. DeRoy, the decedent in that proceeding, was at the time of his *846 death a member of a partnership reporting its income on the basis of a fiscal year ending January 31, in each year. DeRoy died October 7, 1924. He had used the calendar year in reporting his income on the basis of cash receipts and disbursements. His executors filed an income-tax return covering the period from January 1, 1924, to October 7, 1924, and included therein the decedent's distributive share of the partnership income for the fiscal year ending in 1924, namely, the fiscal year ending January 31, 1924. The Commissioner added to the amount returned by the executors an amount representing the decedent's distributive share of the income of the partnership for the period beginning February 1, 1924, and ending October 7, 1924. This later period was a portion of the partnership's fiscal year ending January 31, 1925. Therefore, the latter fiscal year did not end within the decedent's taxable year, namely, the calendar year 1924, and was not within the statutory inclusion. In the DeRoy proceeding we*1246 said: "The death of the partner did not terminate or shorten the accounting period of the partnership ending in the taxable year before us." We, therefore, held in accordance with the statute that only the decedent's distributive share of the partnership's net income for its fiscal year ending during the decedent's taxable year 1924 was taxable to him. We discussed a similar question in , where the decedent was on a calendar year basis and the partnership on a fiscal year basis. In that proceeding the Board held, as we said in (affd., ), that, "since the accounting period of the partnership for the year in which the partner died did not end until after the close of the calendar year for which a return was required to be filed for the decedent for the year of his death, no share of the profits of the partnership which were determined after the calendar year for which the decedent's return was required to be filed should be included in such return." In the present proceeding the fiscal year of the partnership ending August 31, 1924, ended during the taxable*1247 year in which the decedent died and the respondent included in the decedent's income for the portion of 1924 during which he was alive only a prorated distributive share of a fiscal year ending in 1924. It is clear, therefore, that the facts of the present proceeding distinguish it from the DeRoy case and also from the Archbald proceeding.
In , the decedent used the calendar year for his return of income and the partnership involved in that proceeding also made its returns on the basis of the calendar year. The same conditions existed in In each of these cases we held that there should be included in the income of the decedent for the calendar year in which he died his distributive share of the net income of the partnership allocated *847 from the 1st day of January of that year to the date of his death. We see no reason why the principles enunciated in these cases should not be applied to the present proceeding. In this proceeding, while the partnership's accounting period was different from that of the decedent, its current accounting period closed on August 31, in*1248 the decedent's taxable year 1924, which was the year of the decedent's death.
The statute provides that a partner's distributive share in the net income of the partnership, whether distributed or not, is taxable to him as income. In our opinion the decedent's share of the net income of the partnership for the fiscal year ending August 31, 1924, apportioned as of the day of his death was his income. Such apportioned share was not the income of his estate. ; certiorari denied, . The fact that under the partnership agreement the business of the partnership was to be carried on up to August 31, 1924, and the decedent's interest therein was to be continued until the end of that accounting period does not mean that upon the ascertainment of the profits of the business for such fiscal year a part thereof may not be attributed properly to the period of the calendar year 1924 when the decedent was alive. Even though such share might not be distributed until after August 31, 1924, it was nevertheless distributable during the calendar year of the decedent's*1249 death for which a return was required to be filed on his behalf. We are further of the opinion that these conclusions are consistent with the principles underlying our decisions in , and
The petitioners have not attempted to prove that the respondent's method of prorating the decedent's distributive share of the income of the partnership is incorrect. We therefore do not disturb the respondent's determination of the amount of the deficiency.
The second question for solution is whether or not the assessment of the deficiency is barred by the statute of limitations. The return for the period January 1 to June 11, 1924, inclusive, was filed on behalf of the decedent on March 16, 1925. Therefore, the four-year period of limitation upon the assessment of the deficiency would have expired on March 16, 1929, unless the waiver set forth in the findings of fact is valid. The petitioners contend that the waiver is invalid for the reason that it was signed by only one of the four executors, and for the further reason that none of the executors had ever given notice to the respondent pursuant to*1250 the provisions of section 281 of the Revenue Act of 1926 and section 312 of the Revenue Act of 1928 that they were acting individually or collectively in a fiduciary capacity for the decedent or for his estate.
*848 Section 281 of the Revenue Act of 1926 and section 312 of the Revenue Act of 1928 are substantially similar in their provisions. Section 281 of the Revenue Act of 1926 provides in part as follows:
(a) Upon notice to the Commissioner that any person is acting in a fiduciary capacity such fiduciary shall assume the powers, rights, duties, and privileges of the taxpayer in respect of a tax imposed by this title or by prior income, excess-profits, or war-profits tax Act (except as otherwise specifically provided and except that the tax shall be collected from the estate of the taxpayer), until notice is given that the fiduciary capacity has terminated.
* * *
(d) In the absence of any notice to the Commissioner under subdivision (a) or (b), notice under this title of a deficiency or other liability, if mailed to the taxpayer or other person subject to liability at his last known address, shall be sufficient for the purposes of this title even if such taxpayer*1251 or other person is deceased, or is under a legal disability, or, in the case of a corporation, has terminated its existence.
The purpose of the section is shown clearly by the report of the Senate Committee on Finance concerning the Internal Revenue Bill of 1926. (Rept. No. 52, 69th Cong., 1st sess., p. 30.) This report states as follows with reference to section 281:
Section 281: The term "fiduciary" is defined in section 200(b) to mean a guardian, trustee, executor, administrator, receiver, conservator, or any person acting in any fiduciary capacity for any person. The right of the commissioner to assess and distrain and otherwise proceed for the collection of tax depends, for instance, upon giving notice of the deficiency to and making demand upon the proper person. It, therefore, becomes necessary to make certain that there shall be some individual to whom the notice may be mailed and upon whom the demand may be made, in the case of, for example, an incompetent, a decedent's estate, or an estate in the hands of a receiver or trustee in bankruptcy.
To accomplish this purpose, the section provides that if the Commissioner of Internal Revenue has been notified as to the*1252 identity of the fiduciary, notice is to be mailed to and demand made on the fiduciary. In case the Commissioner has not been notified of the fiduciary, notice is to be mailed to and demand made on the taxpayer at his last known address. In case of a change of fiduciary, notice is to be mailed to and demand made on the last fiduciary of whom the Commissioner has been notified. * * *
It is evident from the foregoing quotation and from examination of the section itself that the purpose of section 281 is to facilitate the accomplishment of matters connected with the administration of the internal revenue acts. Its intendment is to provide means by which notices required to be mailed by the Commissioner may be directed to the proper person at the proper address in cases where fiduciaries have been appointed. The intent of the section is beneficial to estates entrusted to fiduciaries. For example, if a deficiency in the tax of an incompetent had been determined by the Commissioner and the incompetent's committee had neglected to give the Commissioner the notice provided by the section, it is conceivable that because of such *849 neglect the committee might receive the notice*1253 of deficiency too late to seek a redetermination by this Board within the time limited.
However, in our opinion there is no provision of the section in question which operates to invalidate any act of a fiduciary which he may lawfully perform. The execution of a waiver is an act which a fiduciary may lawfully perform.
The facts show that Darcy, with the knowledge and consent of the other executors, had charge of tax matters relating to the estate. Acting in that capacity and as executor he had executed for the decedent the return for the period January 1, 1924, to June 11, 1924, the period here in question. The fact that the petitioners were the duly appointed executors is alleged in the petition and stated in the stipulated facts. It also appears that the other executors had knowledge of the execution of the waiver by Darcy.
As a matter of law the lawful act of one executor is the lawful act of all the executors and binds the estate. , and the cases cited therein. In the Bartlett case we held that a waiver executed by one of two executors was valid. *1254 Moreover, the Commissioner accepted the waiver now in question and acted on it. As was said in , "it would be unconscionable to allow the taxpayer to afterwards repudiate a consent upon which the Commissioner has acted and relied."
For the foregoing reasons we are of the opinion that the waiver here in question is valid and binding on the decedent's estate. Since the waiver extended the time within which the assessment might be made to December 31, 1929, and the notice of deficiency was mailed to the petitioners before that date, the assessment of the deficiency is not barred by the statute of limitations.
Judgment will be entered for the respondent.