*1171 The Board has jurisdiction of a proceeding brought by a transferee for the redetermination of its liability for interest on a deficiency in tax of the transferor. So held where the deficiency had already been determined in a proceeding brought by the transferor and paid.
*154 Respondent determined that the petitioner was liable as a transferee for interest of $7,802.12 on its transferor's tax deficiency for 1921 as determined by the Board in 1930 and paid in 1930 without interest.
FINDINGS OF FACT.
Petitioner is a Delaware corporation, with principal place of business at Shreveport, Louisiana. On June 11, 1928, it made a contract with the Louisiana and Arkansas Railway Co., a consolidated corporation organized under the laws of the States of Arkansas and Louisiana, that for all the properties of the consolidated corporation the petitioner would issue and deliver pro rata to the shareholders of the consolidated corporation the petitioner's common and preferred stock and assume the obligations of the consolidated corporation. This was*1172 done.
Immediately after the transfer of the property of the consolidated corporation to petitioner, the consolidated corporation was, and ever since has been, without assets. The value of such property was more than the amount of interest here in controversy.
The consolidated corporation, on November 24, 1926, filed a petition with the United States Board of Tax Appeals from a determination by the Commissioner of a deficiency of $34,169.50 in its income tax for the calendar year 1921. Thereafter, on October 8, 1930, the Board entered its decision redetermining the deficiency to be $15,721.21. During December 1930, this deficiency of $15,721.21 was paid to the collector of internal revenue for the District of Arkansas.
The respondent has determined that petitioner is liable as transferee for $7,802.12 due as interest unpaid on the deficiency.
OPINION.
STERNHAGEN: The question presented at the outset is whether the Board has jurisdiction of this proceeding, since it involves no issue as to the deficiency of the transferor or the petitioner's liability therefor, that deficiency having already been definitively determined and paid, but only an issue as to the petitioner's*1173 liability for the interest on such deficiency. While the evidence, all of which is stipulated, does not show how the amount of interest was computed it is nevertheless a fixed amount, and it seems to approximate simple interest at 6 percent for the period of more than eight years between the filing of the return in 1922 and the payment of the redetermined deficiency in 1930.
*155 In considering whether the Board has jurisdiction to consider interest, it is important that the proceeding is by a transferee in respect of its liability as such and not by a primary taxpayer in respect of a deficiency in its own tax; for the jurisdiction of the Board in these different matters is governed by different statutory provisions. As to the Board's function in respect of the original taxpayer and the deficiency, before assessment, it is clear that interest is treated separately from the deficiency, is imposed directly by the statute and is collected by the Commissioner as thus prescribed as a supplement to the deficiency after it is finally determined. The entire scheme of sections 273 and 274, Revenue Act of 1926, supports this view, more especially section 274(j). While both the*1174 deficiency and the interest are collectible as parts of the tax, they are separate from each other and within the operation of different parts of the machinery of administration. Where the proceeding instituted in the Board by the taxpayer in respect of the Commissioner's determination of deficiency involves an amount already erroneously refunded, it has been held that interest upon such erroneous refund is not part of the deficiency and not within the jurisdiction of the Board, , and also that interest upon an overpayment found in lieu of a deficiency is beyond the Board's jurisdiction, . But those decisions are only remotely significant in the present inquiry.
In the realm of jeopardy assessments dealt with in section 279, the language used in the statute seems to be susceptible of the interpretation that the Commissioner may assess interest with the deficiency and that the entire amount may be litigated before the Board and redetermined. This is important as indicating that even in setting up the jurisdiction of the Board as to the taxpayer himself*1175 and his deficiency, there is no clear and unmistakable purpose to exclude interest from its field of inquiry, but rather a purpose to vary the jurisdiction in different classes of cases.
When, therefore, it becomes necessary to consider the scope of the system of jurisprudence as to transferee liability, set up for the first time in the Revenue Act of 1926, section 280 et seq., , there is no justification for confining such system within an assumed general purpose to keep interest out of the Board's focus. Unhampered by such a restriction, it is clear that as to a transferee the Commissioner may determine a liability not only for a deficiency but also for "interest, additional amounts, and additions to the tax provided by law," and that such a determination is subject to the same process as the determination of a deficiency, that is, a proceeding in the Board for redetermination. Section 280*156 (a), Revenue Act of 1926, appears in the margin.1 The Board has, in several earlier decisions in transferee proceedings, included interest in its determination, *1176 ; ; ; . A fresh consideration of the question confirms the propriety of those decisions.
The*1177 motion to dismiss for want of jurisdiction is therefore denied.
Upon the merits, it appears from the stipulated facts that the petitioner acquired all of the taxpayer's assets, leaving it with nothing; that the value of the assets thus acquired was more than the amount of the liability now being enforced, and that it gave its own shares directly to the shareholders of the original taxpayer. Its liability for the full amount of interest determined by the respondent is therefore beyond question. ; ; ; .
Judgment will be entered for the respondent.
Footnotes
1. SEC. 280. (a) The amounts of the following liabilities shall, except as hereinafter in this section provided, be assessed, collected, and paid in the same manner and subject to the same provisions and limitations as in the case of a deficiency in a tax imposed by this title (including the provisions in case of delinquency in payment after notice and demand, the provisions authorizing distraint and proceedings in court for collection, and the provisions prohibiting claims and suits for refunds):
(1) The liability, at law or in equity, of a transferee of property of a taxpayer, in respect of the tax (including interest, additional amounts, and additions to the tax provided by law) imposed upon the taxpayer by this title or by any prior income, excess-profits, or war-profits tax Act.
(2) Any such liability may be either as to the amount of tax shown on the return or as to any deficiency in tax. ↩