*2246 Prior to March 3, 1924, the Commissioner made an examination for the purpose of determining the petitioner's allowance for amortization for the year 1919. Under date of April 8, 1924, the petitioner was advised by a deputy commissioner of internal revenue of certain findings in connection with its income and invested capital for 1919, including a deduction allowance for amortization, and requesting the petitioner to acquiesce therein within ten days in order that consideration might be given to its claim for assessment under section 328 of the Revenue Act of 1918. In a brief dated April 16, 1924, the petitioner took exception to certain adjustments set forth in the letter of April 8, 1924, but acquiesced in the amortization deduction shown therein. Subsequently the Commissioner reduced the amortization deduction allowance for 1919 and made a final determination of petitioner's claim for amortization on December 20, 1927. Held that the Commissioner was not precluded from reducing the amortization deduction referred to in the office letter of April 8, 1924, in the determination of the deficiency in tax for 1919.
*1234 This proceeding involves a deficiency in income and profits tax for 1919 of $106,929.78. Several of the points in issue have been settled by the stipulations of counsel. The only issue not thus settled *1235 is whether the Commissioner erred in determining the amortization deduction allowable under section 234(a)(8) of the Revenue Acts of 1918 and 1921, subsequent to April 8, 1924.
FINDINGS OF FACT.
(1) The petitioner, which is a Massachusetts corporation with principal office at Worcester, claimed a deduction for amortization in the amount of $1,296,133.68 under the provisions of section 234(a)(8) of the Revenue Act of 1918 in connection with amended tax returns for the years 1918 and 1919, filed with the Commissioner on or about December 15, 1921, and supported its claims by submission to the Bureau of a detailed and comprehensive report of an appraisal company and subsequently further supported its claim by submission to the Bureau of a brief dated May 29, 1922, and a letter addressed to the Bureau engineer assigned to the field investigation of the petitioner's*2248 amortization claim, to which letter there were attached sundry schedules containing supplemental information requested by the engineer, together with additional data.
(2) Under date of January 5, 1923, the Bureau engineer assigned to the field investigation of petitioner's amortization claim submitted his report upon the claim, recommending an amortization allowance of $1,002,977.30 in lieu of the amount claimed by the petitioner ($1,296,133.68), and allocating $981,647.89 of such allowance of $1,002,977.30 to the year 1918 and $21,615.74 to the year 1919.
(3) Under date of June 15, 1923, the petitioner submitted to the Bureau a brief "Re: Revision of income, war and excess-profits tax returns for the calendar years 1918 and 1922, inclusive." In this brief petitioner referred to the engineer's report of January 5, 1923, described in the preceding paragraph, as a report in which, "the Bureau of Internal Revenue, Amortization Section, stated the final results of an examination of the company's claim for amortization, by an engineer from the Amortization Section," and thereupon readjusted all of its computations affected by the amortization allowance to accord with the amortization*2249 allowance contained in said report of the Bureau engineer.
(4) Under date of February 29, 1924, the internal revenue agent assigned to conduct a field examination of petitioner made his report to the Commissioner and in such report recommended the same allowance for amortization as that previously allowed by the amortization section of the Bureau.
(5) Under date of April 8, 1924, the Bureau addressed to the petitioner a letter as follows:
*1236 TREASURY DEPARTMENT
WASHINGTON, April 8, 1924
OFFICE OF
COMMISSIONER OF INTERNAL REVENUE
IT:CR:E
WWC-App
NORTON COMPANY,
Worcester, Massachusetts
SIRS:
Reference is made to your request dated June 15, 1923 that your profits taxes for the years 1918 and 1919 be computed under the provisions of Sections 327 and 328 of the Revenue Act of 1918.
Before consideration can be given your application there must be a final determination of your net income, therefore, it will be necessary for you to advise this office within ten days from the date of this letter of your acquiescence in the determination of your net income as shown in schedules attached or exceptions, if any, which you make thereto.
Respectfully,
*2250 J. G. BRIGHTDeputy Commissioner
Enclosure:
Statement
Schedules 1 to 17, incl.
To this letter were attached schedules embodying the detailed determination of net income for the years 1918 and 1919, and in these schedules amortization was allowed in the amounts recommended by the engineers of the amortization section.
(6) Under date of April 16, 1924, the petitioner submitted to the Bureau its statement of exceptions to determination of net income and invested capital for the years 1918 and 1919, as shown in the Bureau letter of April 8, 1924, referred to in item (5) preceding; this statement, however, including no exception with respect to the amortization deduction allowed by the Bureau in the said letter of April 8, 1924.
(7) Under date of May 23, 1924, the petitioner submitted to the Bureau a letter in reply to the Bureau's letter of April 8, 1924, such reply being as follows:
MAY 23, 1924.
COMMISSIONER OF INTERNAL REVENUE,
Washington, D.C.
SIR:
I, Aldus C. Higgins, Treasurer of the Norton Company, a corporation having its principal office at New Bond Street, Worcester, Massachusetts, do hereby agree to and acquiesce in the determination of the*2251 net income of the Norton Company for the calendar years 1918 and 1919, as set forth in Treasury Department letter of April 8, 1924, symbols IT:CR:E WWC-App, except for the reservations contained in our brief dated April 16, 1924, in the amounts therein stated, as follows:
*1237 Calendar Year 1918
1. Deduction is claimed of depreciation upon patents and contract.
2. Depletion is claimed on Bauxite Mined.
Calendar Year 1919
1. Deduction is claimed of depreciation upon patents and contract.
2. Loss is claimed on account of liquidation of the General Electro-Chemical Company.
Respectfully submitted.
(Signed) ALDUS C. HIGGINS
(8) At this time, namely, not later than May 23, 1924, the petitioner had submitted to the Bureau all the information and data which it cared to introduce, or which the Bureau's representatives had requested, as bearing upon or affecting its amortization allowance, and it was the understanding of the petitioner's officers at that time that the amortization allowance made (as set forth in the Bureau's letter of April 8, 1924 - see item (5) hereof) was final and complete; and the petitioner evidenced its belief that the amortization*2252 allowance thus determined was final and complete by removing from its idle amortizable equipment tags which had previously been placed upon such equipment for the purpose of identifying it as equipment acquired subsequent to April 5, 1917, and as therefore subject to amortization.
(9) Subsequent to May 23, 1924, the petitioner negotiated further with the Bureau in respect of the exceptions taken by it as described in item (6) of this statement of facts, but in such negotiations no reference whatever was made, either by the petitioner or by the representatives of the respondent, to the amortization allowance, and none of the exceptions thus considered affected or were affected by the allowance for amortization of war facilities under section 234(a)(8) of the statute.
(10) In the autumn of 1926 (approximately two and one-half years after the letters of April 8, 1924, from the Bureau, and May 23, 1924, from the petitioner), the respondent transmitted to the petitioner its first intimation that the amortization settlement as evidenced by the said 1924 letters was to be reopened, and the Bureau based its desire to reopen that settlement and redetermine amortization expressly upon*2253 the existence of the then "present rulings of the General Counsel," and the necessity for consideration by the Bureau of "additional data," further intimating that failure on the part of the petitioner to cooperate would result in an "arbitrary disallowance of a very large portion of the previous amortization allowance." Following this letter of the Bureau representatives of the petitioner conferred in person with the chief of the amortization section, on November 16, 1926, for the purpose of learning why the Bureau proposed *1238 to reopen the amortization matter, and were given, as the reason, that "the original computation had not been made in accordance with the present methods of the Department," and that the Bureau therefore "wanted additional information," and were further told that unless the petitioner furnished such additional information "an arbitrary computation would have to be made which would probably not be favorable to the Company."
(11) The petitioner did not at any time, either before or after March 3, 1924, request the Commissioner or the Bureau to reexamine the petitioner's return with respect to amortization and to redetermine its amortization allowance. *2254 The petitioner did submit, under date of December 15, 1926, a "Revised Claim for Amortization," made upon a basis then indicated by the Bureau's representatives as in conformity with their then rulings, but that document was submitted in part because of the consistent practice of the petitioner to cooperate with the Bureau and in part because of the insistence of the Bureau's representatives as described in item (10) hereof, and their intimation that unless the material was submitted an arbitrary and unfavorable adjustment would be made.
The petitioner's representatives were under the impression that the Bureau was within its rights in demanding the submission of revised amortization data and in reopening the examination of amortization, and in submitting the additional data submitted on December 15, 1926, the petitioner's representatives had no intention of waiving any of the petitioner's legal rights and did not waive such rights.
(12) Under date of November 4, 1926, the petitioner, by letter, requested the Commissioner to expedite the consideration of its income-tax returns for the years 1917 to 1920, inclusive. Petitioner was advised on November 8, 1926, that a conference*2255 would be arranged at an early date (not later than November 18, 1926), due to the imminence of the expiration of the statute of limitations and, in order to allow sufficient time for the proper consideration of the amortization question, waivers extending the statute of limitations should be submitted. A conference was held shortly thereafter in Washington with an engineer of the amortization section, as a result of which the petitioner filed its revised amortization claim of December 15, 1926.
(13) Further investigation of petitioner's claim for amortization was made by engineer Griffith, who submitted a report thereof dated July 8, 1927. The final determination of petitioner's claim for amortization was made by respondent on December 20, 1927, when the deficiency letter upon which this petition is based was mailed.
(14) Under the procedure of the Bureau in effect during the period from the filing of petitioner's claim for amortization and the final *1239 determination of the Commissioner on December 20, 1927, the Commissioner had not delegated to any subordinate in the Bureau the authority to make a final determination of petitioner's claim.
OPINION.
SMITH: Section*2256 234(a) of the Revenue Act of 1918 provides that in computing the net income of a corporation subject to the tax imposed by section 230 there shall be allowed, among other items, the following:
(8) In the case of buildings, machinery, equipment, or other facilities, constructed, erected, installed, or acquired, on or after April 6, 1917, for the production of articles contributing to the prosecution of the present war, and in the case of vessels constructed or acquired on or after such date for the transportation of articles or men contributing to the prosecution of the present war, there shall be allowed a reasonable deduction for the amortization of such part of the cost of such facilities or vessels as has been borne by the taxpayer, but not again including any amount otherwise allowed under this title or previous Acts of Congress as a deduction in computing net income. At any time within three years after the termination of the present war the Commissioner may, and at the request of the taxpayer shall, reexamine and return, and if he then finds as a result of an appraisal or from other evidence that the deduction originally allowed was incorrect, the taxes imposed by this title*2257 and by Title III for the year or years affected shall be redetermined and the amount of tax due upon such redetermination, if any, shall be paid upon notice and demand by the collector, or the amount of tax overpaid, if any, shall be credited or refunded to the taxpayer in accordance with the provisions of section 252.
Section 234(a)(8) of the Revenue Act of 1921 uses the same language as above except that the definite date "March 3, 1924" was substituted as marking the close of the three-year period subsequent to the termination of the war.
Section 278(b) of the Revenue Act of 1926 provides:
Any deficiency attributable to a change in a deduction tentatively allowed under paragraph (9) of subdivision (a) of section 214, or paragraph (8) of subdivision (a) of section 234, of the Revenue Act of 1918 or the Revenue Act of 1921, may be assessed, or a proceeding in court for the collection of such tax may be begun without assessment, at any time.
It is the contention of the petitioner in the instant proceeding that the above quoted provision of the 1918 Act and the corresponding provision of the 1921 Act amounts to a statutory prohibition against a reexamination of amortization*2258 begun subsequent to March 3, 1924 (and against a redetermination pursuant thereto) unless such reexamination was begun pursuant to a taxpayer's request made prior to March 3, 1924; that the respondent completed his original examination of the present petitioner's amortization allowance some time prior to April 8, 1924, on which date he communicated the results of his examination and the petitioner definitely accepted and acquiesced *1240 in the results thereof, arrived at by its acquiescence letter of May 23, 1924; that the petitioner did not request any reexamination of its amortization allowance either before or after March 3, 1924; that the determination of amortization embodied in the deficiency notice of December 20, 1927, upon which the petition is based, was a redetermination pursuant to a reexamination of amortization initiated by the Commissioner more than two years subsequent to the completion of his original examination and determination and more than two years subsequent to March 3, 1924, and because of changes in his rules and procedure subsequent to such original determination and subsequent to March 3, 1924, and was not made pursuant to any request from the petitioner*2259 either before or after March 3, 1924, and, accordingly, is in violation of the statute and wholly without effect as the basis for the deficiency determination; that the provision of section 278(b) of the Revenue Act of 1926 extends the time for assessment and collection only in cases of a change of the deduction "tentatively allowed" whereas the deduction allowed in this case in April, 1924, was in no sense and in no degree tentative.
The respondent, on the other hand, contends that the petitioner's claim for amortization was in process of audit continuously from 1921 to 1927; that no final action by the respondent on said amortization claim was taken prior to December 20, 1927, the date of the mailing of the deficiency notice, and that the respondent is not required to make his final determination prior to March 3, 1924, and that he is not prohibited from making as many examinations as are necessary to make a correct determination.
An inspection of the language of section 234(a)(8) of the Revenue Acts of 1918 and 1921 shows that it was the intention of Congress to permit the Commissioner to redetermine the amortization allowance within three years from the termination of the*2260 World War or within three years from March 3, 1921, provided the Commissioner on his own motion began the reexamination of the amortization allowance prior to March 3, 1924, or if request was made therefor by the taxpayer prior to March 3, 1924. There is no requirement that the reexamination shall have been completed prior to March 3, 1924. . The respondent's regulations and rulings support this position. Article 184 of Regulations 62 provides:
* * * Such tentative allowance may be redetermined on or before March 3, 1924, at the request of the taxpayer or by the Commissioner. * * *
S.M. 1782, C.B. III-2, p. 133:
In view of the positive language employed in both statutes [Revenue Acts of 1918 and 1921], it must be held that the Commissioner is without authority to take any action pursuant to a request for redetermination of amortization *1241 with respect to returns filed under the Revenue Acts of 1918 or 1921 unless such request was filed prior to March 3, 1924.
S.M. 4226, C.B. IV-2, p. 164:
The deadline fixed by the statute, prior to which the Commissioner might, and at the request of the taxpayer*2261 should, undertake such reconsideration, had passed. So far as amortization was concerned the taxpayer's case was closed.
S.M. 4225, C.B. IV-2, p. 168:
From the foregoing language the inference is clear that March 3, 1924, was not the final date when the Commissioner's redetermination was required to be completed, but was intended as the date before which the request by the taxpayer should be made for the reexamination of the return by the Bureau must be begun.
There is no question in the instant proceeding but that the reexamination of the petitioner's claim for amortization made upon its return was prior to March 3, 1924. The contention of the petitioner is that there was a redetermination of the amortization allowance shortly subsequent to March 3, 1924, and that under that redetermination its claim was allowed in the amount of $1,002,977.30, of which amount $981,647.89 was allocated to the year 1918, and $21,615.74 to the year 1919. The petitioner contends that subsequent to such redetermination made by the respondent shortly after March 3, 1924, the respondent attempted to make a reexamination and redetermination of the amortization allowance and that the result of such*2262 reexamination and redetermination was communicated to it in the deficiency notice of December 20, 1927, which forms the basis for this proceeding.
In , the Board, in passing upon an issue involving the disallowance of an amortization deduction, said:
Of course such determination was not final in the sense that it precluded the respondent from reopening the case and adjusting or changing the allowance at any time within the prescribed statutory period. * * *
The question involved in that case was whether a certain allowance of an amortization claim communicated to the taxpayer under date of November 19, 1923, was a tentative allowance within the meaning of section 278(b) of the Revenue Act of 1926. We held that it was not and that therefore the five-year statutory period of limitation applied and that the deficiency in tax involved in a 60-day notice under date of August 5, 1926, was barred by the general statute of limitations.
In the instant proceeding there is no question involved as to the expiration of the statute of limitations, as all adjustments made by the respondent were made within the general limitation.
*2263 *1242 The facts in the instant proceeding are substantially the same as those which obtained in . In that case one examination had been made prior to March 3, 1924, and two examinations subsequent thereto, which resulted in decreasing the amortization allowance. In the course of its opinion the court stated:
Just exactly what Congress had in mind, when the above-quoted part of Section 234(a)(8) was enacted, we do not undertake to surmise; but it plainly did not intend to prevent any examination of an amortization claim after March 3, 1924, on the part of the Commissioner. To hold otherwise would be to ignore the proviso of Section 250(d) of the Revenue Act of 1921, which asserts:
"PROVIDED, FURTHER, That in cases coming within the scope of * * * or of paragraph (8) of subdivision (a) of section 234 * * * the amount of tax or deficiency in tax due may be determined, assessed, and collected at any time; but prior to the assessment thereof the taxpayer shall be notified and given a period of not less than thirty days in which to file an appeal and be heard as hereinafter provided in this subdivision."
*2264 We are unable to accede to plaintiff's assertion that the approval of the Griffith report by the Chief of Engineers and the Chief of the Amortization Section was a determination of plaintiff's amortization allowance. It is undoubtedly true that employes in the Amortization Section regarded and spoke of such approved reports as "determinations", despite the fact that they were still subject to audit, but the fact remains that the power of determination had not yet passed from the Commissioner, and did not pass from him prior to his issue of the thirty-day letter when the taxpayer was notified of his decision and given opportunity to appeal.
We are of the opinion that the respondent did not lose his right to adjust the petitioner's claim for amortization for 1919 in accordance with the law and the facts by reason of the letter sent to the petitioner on April 8, 1924, and by reason of the petitioner's acquiescence therein as shown by the letter of May 23, 1924. The return was not completely audited for 1919 until after the last-named date. The petitioner did not fully acquiesce in the respondent's audit communicated to it under date of April 8, 1924. Whether it did or did not*2265 appears to us to be immaterial. So long as any part of that audit was in abeyance, we think the entire audit was in abeyance. In any event, we are of the opinion that the respondent does not lose his right properly to audit a return within the general statutory period of limitation simply by sending to the taxpayer a proposed audit of the return.
Judgment will be entered under Rule 50.