*95 The proceeding in Docket No. 19789 is for the redetermination of a deficiency in income and profits tax for the calendar year 1919 in the amount of $257,074.60, and the proceeding in Docket No. 22495 is for the redetermination of income and profits tax for the calendar year 1919 in the amount of $257,074.60 against the petitioner therein as transferee under section 280 of the Revenue Act of 1926. Upon the allegations of the petitions and admissions of the answers, the petitioner moves for orders of no deficiency in each of the proceedings, alleging that the respondent is barred by the statute of limitations from assessing and collecting any of the alleged deficiencies for the year 1919. For simplicity, the findings of fact will be phrased as if there were but one proceeding.
FINDINGS OF FACT.
The petitioner filed a tentative income and profits-tax return for the year 1919 on March 13, 1920, and filed a completed return on May 15, 1920. No assessment was made against the petitioner for additional taxes for the year 1919 prior to May 15, 1925.
On October 19, 1925, more*2673 than five years subsequent to the filing of the completed return, the petitioner and the Commissioner signed a consent entitled "Income and profits tax waiver for taxable years prior to January 1, 1922." The material part of this consent is in the words and figures as follows:
In pursuance of the provisions of existing Internal Revenue Laws Carnation Milk Products Co., a taxpayer of * * * and the Commissioner of Internal Revenue hereby waive the time prescribed by law for making any assessment of the amount of income, excess-profits, or war-profits taxes due under any return made by or on behalf of said taxpayer for the year (or years) 1918, 1919, 1920, and 1921, under existing revenue acts, or under prior revenue acts.
This waiver of the time for making any assessment as aforesaid shall remain in effect until December 31, 1926, and shall then expire except that if a notice of a deficiency in tax is sent to said taxpayer by registered mail before said date and (1) no appeal is filed therefrom with the United States Board of Tax Appeals then said date shall be extended sixty days, or (2) if an appeal is filed with said Board then said date shall be extended by the number of days*2674 between the date of mailing of said notice of deficiency and the date of final decision by said Board.
*96 On or about March 1, 1926, the petitioner filed a claim for refund for part of the taxes paid under the completed return.
On or after July 6, 1926, the Commissioner sent a notice of deficiency to the petitioner in Docket No. 19789, and on November 11, 1926, a notice of deficiency was sent to the petitioner in Docket No. 22495.
OPINION.
LOVE: The petitioner contends that the waiver delivered to the Commissioner on October 19, 1925, was ineffective and that the Commissioner is therefore barred from assessing and collecting additional taxes alleged to be due for the year 1919.
The issue presented by the motions in these proceedings is concluded by the decision of the Board in , and upon authority of that decision the petitioner's motion for judgment on the pleadings must be denied.
Order will be entered denying the motion for judgment of no deficiency, and restoring the proceeding to the calendar for hearing in due course upon the merits.
Considered by TRUSSELL, SMITH, and LITTLETON.