*2567 1. LIMITATION - WAIVER. - Under the laws of Texas the directors of a dissolved corporation are trustees for three years for the purpose of winding it up. After the expiration of said period the president, who was also a director and trustee, and the assistant secretary, are without authority to act for the corporation and an income and profits-tax waiver signed by them more than three years after the dissolution is invalid and does not prevent the running of the statute of limitations. J. C. Hunt,15 B.T.A. 1388">15 B.T.A. 1388 followed.
2. ASSESSMENT - CANCELLATION - REINSTATEMENT. - Where the Commissioner makes a jeopardy assessment within the period of limitation and cancels it, and makes a second assessment after the statute has run, said second assessment does not reinstate the former assessment. Carney Coal Co.,10 B.T.A. 1397">10 B.T.A. 1397, followed.
*570 The respondent, acting under section 280 of the Revenue Act of 1926, has determined a liability against the petitioner in the sum of $5,177.29 as constituting his liability as a transferee*2568 of the assets of the Burkburnett Refining Co., Wichita Falls, Tex., for unpaid income and profits taxes of that amount assessed against the Burkburnett Refining Co. for the fiscal year ending March 31, 1919.
Petitioner complains that the determination of liability by the respondent was based upon the following errors: (a) That respondent erred in determining that he had authority under the Constitution and laws of the United States to establish, adjudicate or enforce any liability against the transferee of the assets of a corporation for taxes claimed to be due by said corporation; (b) that respondent erred in holding and determining that the period within which income and excess-profits taxes for the fiscal year ending March 31, 1919, could be assessed against the Burkburnett Refining Co. had not expired at the time the assessment herein involved was made; (c) that respondent erred in holding and determining that the alleged waiver executed in the name of the Burkburnett Refining Co. on or about June 23, 1924, was effective to extend the period within which an assessment of additional taxes could be made against the Burkburnett Refining Co.; and (d) the Commissioner erred in his*2569 calculation of the net income of the Burkburnett Refining Co. aforesaid for the fiscal year ending March 31, 1919, in that he disallowed as a loss and deduction the sum of $43,500, representing the cost of refinery equipment and machinery bought and paid for by said company, which was not delivered and delivery of which could not be enforced.
On July 9, 1927, petitioner filed a motion for judgment on the pleadings and as ground therefor contended that the respondent was without constitutional authority to determine a liability against a transferee of the assets of a delinquent taxpayer because it would be an exercise of judicial power. This motion was denied by order of the Board March 12, 1929, and the case restored to the General Calendar for hearing on its merits. At the hearing the parties filed a written stipulation of certain facts and agreed that the evidence introduced in the case of , shall be considered by the Board as evidence in this case.
FINDINGS OF FACT.
The petitioner is a resident of Wichita Falls, Tex. The liability in controversy is the entire amount asserted against the*2570 petitioner as *571 transferee of the assets of the Burkburnett Refining Co., hereinafter referred to as the Refining Company, for unpaid income and profits taxes in the sum of $5,177.29, assessed against that corporation for the fiscal year ended March 31, 1919.
The Refining Company was a Texas corporation organized in 1917, with an authorized capital stock of $300,000. Petitioner was a stockholder in the Refining Company, but was not an officer or director.
June 13, 1921, all the stockholders of the Refining Company filed with the Secretary of State of Texas, all in due compliance with law, an agreement and consent in writing that said corporation be dissolved, and the Secretary of State on the same date issued a certificate of dissolution as follows:
I, S. L. Staples, Secretary of State, of the State of Texas, DO HEREBY CERTIFY, that J. C. Hunt, President, G. D. Rigsby, Secretary and G. D. Rigsby, Treasurer of Burkburnett Refining Company, a corporation duly and legally incorporated under the laws of the State of Texas, with its principal office at Wichita Falls, Wichita County, Texas, have this day filed in this Department an agreement and consent in writing of all*2571 the stockholders of said corporation, consenting and agreeing that said Corporation be dissolved, together with a list of officers and directors of said Corporation, with the postoffice address and place of residence of each, said President, Secretary and Treasurer certifying that said consent to dissolution was the true and correct action of the stockholders.
I further cerify that by reason of said action of the stockholders of said Burkburnett Refining Company, said Corporation is dissolved.
On June 23, 1924, 3 years and 10 days thereafter, the following income and profits-tax waiver for the year ended March 31, 1919, was signed on the part of the taxpayer by "J. C. Hunt, President," and attested by "Parker Simison, Asst. Secretary." Simison was not and had never been a director of the corporation.
BURKBURNETT REFINING CO.
Waiver for year ended March 31, 1919
WICHITA FALLS, TEXAS,
June 23, 1924.
INCOME AND PROFITS TAX WAIVER
In pursuance of the provisions of subdivision (d) of Section 250 of the Revenue Act of 1921, Burkburnett Refining Company of Burkburnett, Texas, and the Commissioner of Internal Revenue, hereby consent to a determination, assessment, and*2572 collection of the amount of income, excess-profits, or war-profits taxes due under any return made by or on behalf of the said Burkburnett Refining Company for the year ended March 31, 1919, under the Revenue Act of 1921, or under prior income, excess-profits, or war-profits tax Acts, or under Section 38 of the Act entitled "An Act to provide revenue, equalize duties, and encourage the industries of the United States and for other purposes," approved August 5, 1909. This waiver is in effect from the date it is signed by the taxpayer *572 and will remain in effect for a period of one year after the expiration of the statutory period of limitation, or the statutory period of limitation as extended by any waivers already on file with the Bureau, within which assessments of taxes may be made for the year or years mentioned.
BURKBURNETT REFINING COMPANY,
Taxpayer.
(Corporate seal) (Signed) By J. C. HUNT, President.
D. H. BLAIR, Commissioner.
Attest:
PARKER SIMISON, Asst. Secretary.
If this waiver is executed on behalf of a corporation, it must be signed by such officer or officers of the corporation as are empowered under the laws of the State in which*2573 the corporation is located to sign for the corporation in addition to which, the seal, if any, of the corporation must be affixed.
No seal was affixed to the waiver.
Thereafter, on March 11, 1925, a somewhat similar waiver as appears below, was signed for the year ended March 31, 1919, by the same individuals acting in the same official capacities.
MARCH 11, 1925.
INCOME AND PROFITS TAX WAIVER
(For taxable years ended prior to March 1, 1921.)
In pursuance of the provisions of existing Internal Revenue Laws Burkburnett Refining Company, a taxpayer of Wichita Falls, Texas, 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 (s) March 31, 1919 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, 1925, 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*2574 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 between the date of mailing of said notice of deficiency and the date of final decision by said Board.
BURKBURNETT REFINING COMPANY,
Taxpayer.
By J. C. HUNT, President.
D. H. BLAIR, Commissioner.
Company long since out of business & Corporate seal lost.
Attest:
PARKER SIMISON, Asst. Secretary.
If this waiver is executed on behalf of a corporation, it must be signed by such officer or officers of the corporation as are empowered under the laws of the State in which the corporation is located to sign for the corporation, in addition to which, the seal, if any, of the corporation must be affixed.
The Refining Company's income-tax return for the fiscal year ended March 31, 1919, was filed August 2, 1919.
*573 On June 7, 1924, the respondent wrote the Refining Company the following letter:
JUNE 7, 1924
IT:NR:F-2
HMW-658
BURKBURNETT REFINING COMPANY,
Burkburnett, Texas.
SIRS: Reference is made to office letter of March 7, 1924, disclosing additional*2575 tax liability against your corporation of $5,177.29 for the fiscal year ended March 31, 1919, also reply of March 26, 1924 from Messrs. Lowson and Dawson, Washington, D.C. protesting against the adjustments made.
In view of the fact that there is not sufficient time to act on the protest within the limitation prescribed by law, you are advised that in order that the collection of this tax may not be jeopardized by the delay incident to giving the usual sixty days notice as provided in Section 274(a) of the Revenue Act of 1924, an immediate assessment by the Commissioner of Internal Revenue will be made.
This assessment is in addition to all other outstanding and unpaid assessments appearing upon the Collector's lists.
The Bureau will, however, entertain a claim in abatement if filed within ten days of the receipt of notice and demand from the Collector of Internal Revenue for your district in accordance with the provisions of Article 1006 of Regulations 62.
If appeal is not filed, payment should be made upon receipt of notice and demand from the Collector of Internal Revenue for your district.
Respectfully,
J. G. BRIGHT,Deputy Commissioner.
(Signed) By S. *2576 A. ALEXANDER,
Head of Division. M.
On the respondent's August, 1924, Assessment List there was included the assessment against the Refining Company mentioned in the above letter. This was subsequently canceled and a new assessment made in June, 1925, which is the one now sought to be enforced.
Petitioner received as transferee from the Refining Company assets in excess of the amount of the claim herein. The total amount of the claim against the Refining Company is $5,177.29 and is the same assessment involved in the case of .
OPINION.
MILLIKEN: The question of the authority of the former president and assistant secretary of the Refining Company to sign the waivers set out in the findings of fact, and the validity of said waivers has been considered by the Board in the case of , and it was there determined they had no such authority, that the waivers were invalid, and did not stop the running of the statute of limitations. This case involves the same facts and the decision must be the same.
*2577 *574 It was suggested by counsel for the respondent that the assessment made in June, 1925, might reinstate the former assessment of August, 1924, and thus prevent the running of the statute. We had occasion to consider substantially the same question in , and reached the contrary conclusion.
Judgment will be entered holding that there is now no liability on the part of this petitioner at law or in equity pursuant to the provisions of section 280 of the Revenue Act of 1926 in respect of the tax imposed upon the Burkburnett Refining Co. for the fiscal year ended March 31, 1919.