*1024 Petitioners filed a joint tentative return for the year 1934 on March 15, 1935, on forms supplied by the Commissioner through the local collector, and secured an extension of time to file their final return. A new regulation, article 117-5, Regulations 86, construed section 117 of the Revenue Act of 1934, effecting a change in the treatment of capital gains and losses, in its specific application to husband and wife. Petitioners, in fact, had no knowledge of that regulation when the tentative return was filed. Regulations 86 were released to the public on March 2, 1935. After March 15, 1935, and before filing their "final" return, petitioners orally requested information from a person attached to the office of the collector of internal revenue at Cleveland, Ohio, who had examined petitioners' returns for several preceding years, as to whether they could file final separate returns and were told that, in the opinion of that person and his associates in the office, they could not. They then signed and filed their "final" joint return on May 15, 1935, within the extension period allowed them, knowing the law had been changed. In July 1936 petitioners made oral application to Commissioner*1025 for permission to file separate returns and were refused. Held, that the Commissioner did not err in refusing to permit petitioners to file separate returns.
*480 These proceedings were brought to redetermine a deficiency in the income taxes of the petitioners for the year 1934 in the sum of $9,746.63.
*481 The sole issue is whether or not the petitioners, who had filed both a tentative and a "final" joint return, were, under the circumstances here present, entitled to file separate returns.
FINDINGS OF FACT.
Certain facts were stipulated substantially as follows:
John D. Biggers, hereinafter sometimes referred to as the petitioner, is the president of the Libbey-Owens-Ford Glass Co., of Toledo, Ohio. He is the husband of Mary I. Biggers, the petitioner in Docket No. 89466, involving the same facts.
From at or about the latter part of January 1935 until approximately February 5, 1935, the petitioner was continuously engaged in negotiations with the employees of his company looking to the settlement*1026 of certain disputes which had arisen between them. Such negotiations required his attention practically continuously for the period in question and diverted his attention not only from his personal affairs but from his other duties as president of the company. A necessary business trip through the West and to the Pacific Coast compelled him to be absent from his office from about February 6, 1935, until after March 15, 1935. He was accompanied by his wife.
On February 5, 1935, the petitioner requested of and received from the collector of internal revenue for the tenth district of Ohio an extension of 60 days from March 15, 1935, in which to file his and his wife's return for the calendar year 1934. That extension was granted upon the condition that they make "tentative" returns on or before March 15, 1935, and make payment of at least one-fourth of the estimated tax payable upon the basis of such returns.
The petitioner and his wife signed and executed on February 6, 1935, a form of "tentative" joint return, which was filed on March 15, 1935, with the collector of internal revenue, tenth district of Ohio, and one-fourth of the tax payable calculated upon the basis of such*1027 "tentative" return was at that time paid. On May 15, 1935, in accordance with the extension of time granted, the petitioner and his wife executed and filed a "final" joint return in the same form as the "tentative" return.
Both the "tentative" and "final" returns filed by petitioner and his wife were set out on Treasury Department Internal Revenue Service Form 1040 and followed the instructions attached thereto as petitioner and his wife understood them. Such form and attached instructions were furnished taxpayers for returning their taxable income for the year 1934 by the Bureau of Internal Revenue.
At or immediately after July 11, 1936, the petitioner and his wife received from the internal revenue agent in charge the report, bearing that date, of the Bureau's field agent who had examined their return. *482 The report took exception to the method of computation of the joint net capital gains, which were arrived at by deducting from capital gains of the petitioner's wife capital losses sustained by the petitioner. The agent's position was based by him upon the terms of article 117-5 of Regulations 86.
*1028 Article 117-5 of Regulations 86 had not appeared in Regulations 77 or in any other such published regulations promulgated prior to Regulations 86, but is contained in T.D. 4511; C.B. XIV-1, pp. 107-110, published January 21, 1935.
On or about July 11, 1936, the petitioner and his wife, through their attorney, presented to the office of the Commissioner of Internal Revenue their verbal request for the right to reelect as to the form of their tax return for the year 1934 and to be allowed to file separate returns instead of a single joint return. This request was based upon the theory that sufficient time had not elapsed between the date of the promulgation to the public of Regulations 86 and the date of making of the petitioners' return, to charge petitioners with knowledge of the change effected by article 117-5 of such regulations. The petitioners' request was refused by the Commissioner.
The total income taxes payable by the petitioner and his wife for the tax year 1934 will be greater upon the basis of a joint return than upon separate returns by the parties for the same period.
Regulations 86 were approved by the Secretary of the Treasury on February 11, 1935, and*1029 released to the public March 2, 1935, which was subsequent to the preparation and execution of the joint tentative return by the petitioner and his wife on February 6, 1935.
The record discloses the following additional facts:
Upon petitioner's return from the West Coast about the last of March 1935, and prior to filing the final return, he was told by his secretary that a new income tax regulation (article 117-5, Regulations 86) had come to her notice, materially affecting the return of the petitioner and his wife and that she had telephoned the person in the office of the local collector of internal revenue who had checked petitioners' returns for several preceding years to learn whether the petitioner and his wife could file separate returns, but that she had been informed by that person, after he had consulted with his associates in the collector's office, that, in his opinion, no such change could be made. Relying on that advice, the petitioners signed their "final" return in the same form as the tentative return. On or before March 15, 1935, the petitioner had, in fact, no notice or knowledge of the change in the regulations affecting the joint returns of husband and wife.
*1030 The petitioner made up the returns of himself and his wife with the assistance of his secretary, who assembled the data forming the basis of the returns.
*483 OPINION.
LEECH: The question is whether respondent properly denied petitioners' request to file amended returns upon a separate basis.
Under section 51 of the Revenue Act of 1934, 1 petitioners had the right to elect whether to file joint or separate income tax returns. 2
Article 53 - 4, Regulations 86, defines the due date as follows:
Due date of*1031 return. - The due date is the date on or before which a return is required to be filed in accordance with the provisions of the Act or the last day of the period covered by an extension of time granted by the Commissioner or a collector. When the due date falls on Sunday or a legal holiday, the due date for filing returns will be the day following such Sunday or legal holiday.
Undoubtedly, as petitioners concede, where a right of election of alternative forms of return exists and that right has been exercised, after, if not before, 3 the due date of the return, either the respondent has no authority to accept amended returns, 4 or such acceptance is discretionary with respondent and its refusal is not subject to review here. 5 Thus, our inquiry is whether petitioner, under the law, did elect to file a joint return for 1934.
*1032 Ordinarily, certainly, the filing of a joint return by husband and wife constitutes an election of that form of return. 6 Petitioners' position is that they did not elect, under the law, to file a joint return. They argue that the filing of a tentative joint return did not constitute an election and that the filing of a final joint return, in the present circumstances, did not do so either because, when filed, they did not know their legal rights in the premises, in that a change in those legal rights had been effected by Regulations 86, article 117-5 construing *484 the Revenue Act of 1934, with the knowledge of the contents of which they could not be charged because such regulations were not promulgated until March 3, 1935; or, in effect, that respondent is estopped from claiming their filing of a final joint return was an election on this record.
The tentative return*1033 is a form of report of income not specifically authorized by statute. It came into existence in 1919 by reason of the power delegated to the Commissioner to "grant a reasonable extension of time for filing returns whenever, in his judgment, good cause exists" (section 227(a), Revenue Act of 1918). Section 250(a) of that act provided that "where an extension of time for filing a return is granted the time for payment of the first installment shall be postponed until the date of the expiration of the period of the extension." Consequently, in order to meet the needs of the Government for immediate revenue the "tentative" return was invented. As a condition of being granted the privilege of its use, the taxpayer was required to pay one-fourth of his estimated taxes with the filing of such return.
We agree that petitioners' filing of the tentative joint return did not constitute the exercise of their right of election. 7 But, after being properly granted an extension of time within which to file a final return, 8 the taxpayers on May 15, 1935, formally filed a final joint return within the period so extended. 9 It is true that Regulations 86, article 117-5, 10 notice of which*1034 first appeared January 21, 1935, in T.D. 4511, C.B. XIV-1, pp. 107 - 110, and published in the regulations on March 2 of the same year, is a new regulation in the sense that, and only that, its detail is not contained in any prior regulation. In no event, of course, can a regulation change the law. 11 But it does not here even attempt to do that. It is true it bears the caption "Application of Section 117 in the case of Husband and Wife." But it then proceeds merely to show the specific application of section 117 of the Revenue *485 Act of 1934 to the joint or separate returns of a husband and wife where the limitation on the allowance of losses from sales or exchanges of capital assets, contained in subsection (d) of section 117, becomes effective. It does contain the statement that whether a husband and wife make joint or separate returns, they are considered separate taxpayers, but that is merely a statement of what has long been the law. 12 Regulations 86, article 117-5, merely construed, and, we think, properly, the application of section 117(d) in the light of that law. 13 Article 381 of Regulations 77 provides that where a single joint return is filed*1035 by husband and wife "the tax is imposed on the aggregate income and all deductions and credits to which either is entitled shall be taken from such aggregate income. * * *" (Emphasis supplied.) Thus that article would limit these same deductions of a husband and wife under section 117(d) of the Revenue Act of 1934, as does article 117-5 of Regulations 86, supra, which superseded the earlier regulation.
*1036 It follows that, since husband and wife had thereofore been determined to be separate taxpayers, the rights of the petitioners, as such, under the Revenue Act of 1934, section 117(d), were fixed by the effective date of that act, which was May 10, 1934. That was just a year prior to the date upon which the petitioners filed their final joint return.
It is elementary that every one is presumed to know the law and that ignorance of a taxpayer's right thereunder does not vitiate such an election of a taxpayer. 14 Moreover, since the Board is a creature of statute, its jurisdiction is fixed by statute which does not include equitable jurisdiction. It thus has none. 15 This limitation has been recognized in many cases in which the so-called equities were, in our judgment, not weaker than those here. 16 But, assuming it had such jurisdiction, we know of no authority under which it would be said that the equities in this situation warranted a holding that the taxpayers should not be charged with knowledge of the law as it existed when they filed their final joint return. Particularly is this so, since the petitioners, before filing their final joint return, actually knew of a change*1037 in the law affecting their rights.
*486 However, is respondent estopped from taking the position that the filing of the final joint return by the petitioners was an election here? Before filing their final joint return, petitioner's*1038 secretary had telephoned the person in the local office of the collector of internal revenue at Cleveland, Ohio, who had checked his returns for the preceding several years, and had asked him whether the petitioners could file final separate returns. This person, after consulting with his associates in that office, advised that, in his opinion, such returns could not be made. Aside from the general rule that estoppel can not apply against the Government, 17 we know of no precedent which would support its application here. Neither the official status of the person advising petitioner, nor that of his consultants, is disclosed. And that person purported to give petitioner's secretary only his opinion and that of those associates. A mere opinion does not support an estoppel. 18
Moreover, in any event, the great weight of authority is that representations made by revenue agents or collectors are not binding on the Government. 19
*1039 We conclude the filing of a final joint return by the petitioners was a valid, binding election to return their income for 1934 in that form, and that respondent was right in his denial of their later request to file amended separate returns.
Reviewed by the Board.
Decisions will be entered under Rule 50.
VAN FOSSAN (dissenting): I am unable to agree with the ruling of the majority that the petitioners made a free or binding election to file the so-called "final return." The joint return was filed under the compulsion incident to the refusal of the office of the collector to permit a change to separate returns. Thus the petitioners were deprived of the freedom of choice essential to an election. "* * * if the right [of election] be granted, opportunity for fairly exercising it should not be cut off or disparaged, especially when ignorance, misadvice or what would ordinarily be recognized as excusable error, has entered into its exercise." McIntosh v. Wilkinson, 36 Fed.(2d) 807. It would have availed taxpayers nothing to have tendered separate returns. They would not have been accepted. Garland C. Kent,27 B.T.A. 1055">27 B.T.A. 1055;*1040 United States v. Pettigrew, 81 Fed.(2d) 666. $487
*487 In Detroit Gear Machine Co. v. Helvering, 75 Fed.(2d) 660, the court observed:
* * * where there is a complete reversal of policy on the part of the Treasury Department and scant opportunity of notice to those affected, it would be both arbitrary and unreasonable to deprive the taxpayer of rights given him by the Revenue Acts or to hold him, as in this case, to an election made without knowledge of his rights. In saying this, we do not mean to intimate that the taxpayer is not bound by his misinterpretation or misconstruction of the law, or that he sould be relieved because of his failure to know the law, but we are speaking entirely to the matter of an election between two inconsistent rights. either of which may be availed of by the taxpayer under the tax laws. In such a case knowledge, actual or imputed, is essential to constitute an election. [Italics supplied.]
In the present case the office of the collector advised that the filing of the tentative return precluded a change to separate returns. That this was error, even the prevailing opinion concedes. This*1041 misadvice by the collector's office is solely responsible for the present proceedings. Had the collector advised correctly, taxpayers would have filed separate returns and these cases would never have been filed.
Although I readily agree that the Board has no general equitable jurisdiction, I do not agree that, in determining the question here present as to the exercise of an election granted by statute, equitable considerations arising from the facts may not be entertained. See McIntosh v. Wilkinson, supra;Detroit Gear Machine Co. v. Helvering, supra.The doctrine of election depends not on technical rules but on principles of equity and justice and actual intention. To be binding an election must be free, advised, and deliberate. Standard Oil Co. v. Hawkins, 74 Fed.(2d) 395. Here the taxpayers made no such election.
I believe the respondent should be reversed.
ARUNDELL agrees with this dissent.
Footnotes
1. SEC. 51. INDIVIDUAL RETURNS.
* * *
(b) HUSBAND AND WIFE. - If a husband and wife living together have an aggregate net income for the taxable year of $2,500 or over, or an aggregate gross income for such year of $5,000 or over -
(1) Each shall make such a return, or
(2) The income of each shall be included in a single joint return, in which case the tax shall be computed on the aggregate income. ↩
2. O'Rourke v. Commissioner, 81 Fed.(2d) 668; United States v. Pettigrew, 81 Fed.(2d) 666; Buttolph v. Commissioner, 29 Fed.(2d) 695; J. M. Moore,15 B.T.A. 1037">15 B.T.A. 1037↩.
3. William A. Webster Co.,37 B.T.A. 800">37 B.T.A. 800; Haggar Co.,38 B.T.A. 141">38 B.T.A. 141; A. J. Crowhurst & Sons, Inc.,38 B.T.A. 1072">38 B.T.A. 1072↩.
4. Alameda Investment Co. v. McLaughlin, 33 Fed.(2d) 120; George Freese's Sons,18 B.T.A. 416">18 B.T.A. 416, cited with approval in Baird Machine Co.,19 B.T.A. 801">19 B.T.A. 801; 550 Park Avenue Corporation,20 B.T.A. 288">20 B.T.A. 288; Pine Ridge Coal Co.,23 B.T.A. 489">23 B.T.A. 489; Dr. Pepper Bottling Co.,25 B.T.A. 1323">25 B.T.A. 1323; Smith Paper Co.,31 B.T.A. 28">31 B.T.A. 28; Fletcher American National Bank,33 B.T.A. 453">33 B.T.A. 453; C. H. Mead Coal Co.,38 B.T.A. 1163">38 B.T.A. 1163↩.
5. Alameda Investment Co., supra;Smith Paper Co., supra;Fletcher American National Bank, supra;Radiant Glass Co. v. Burnet, 54 Fed.(2d) 718; Lucas v. St. Louis National Baseball Club, 42 Fed.(2d) 984; Safety Electric Products Co. v. Helvering, 70 Fed.(2d) 439; United States v. Pettigrew, supra;O'Rourke v. Commissioner, supra;Buttolph v. Commissioner, supra;Rose v. Grant, 39 Fed.(2d) 340; Morris v. Commissioner, 40 Fed.(2d) 504; J. M. Moore, supra.↩
6. O'Rourke v. Commissioner, supra;United States v. Pettigrew, supra;Buttolph v. Commissioner, supra;J. M. Moore, supra;Morris v. Commissioner, supra;Rose v. Grant, supra.↩
7. Oklahoma Contracting Corporation,35 B.T.A. 232">35 B.T.A. 232; Regulations 75, art. 10, par. 10 (b). See also Florsheim Bros. Dry Goods Co., Ltd. v. United States,280 U.S. 453">280 U.S. 453↩.
8. SEC. 53. TIME AND PLACE FOR FILING RETURNS.
* * *
(2) EXTENSION OF TIME. - The Commissioner may grant a reasonable extension of time for filing returns, under such rules and regulations as he shall prescribe of time proval of the Secretary. Except in the case of taxpayers who are abroad, no such extension shall be for more than six months. ↩
9. This return bore no indication that petitioners claimed the right to file separate returns or have their income so taxed. See Binder v. Welch,↩ Fed.Supp. (U.S. Dist Ct., S. Dist. Cal., Nov. 17, 1937.)
10. ART. 117-5. Application of section 117 in the case of husband and wife.↩ - In the application of section 117, a husband and wife, regardless of whether a joint return or separate returns are made, are considered to be separate taxpayers. Accordingly, the limitation under section 117(d) on the allowance of losses of one spouse from sales or exchanges of capital assets is in all cases to be computed without regard to gains and losses of the other spouse upon sales or exchanges of capital assets.
11. Manhattan General Equipment Co. v. Commissioner,297 U.S. 129">297 U.S. 129↩.
12. Frank B. Gummey,26 B.T.A. 894">26 B.T.A. 894; Joseph E. Uihlein,30 B.T.A. 399">30 B.T.A. 399; Frank M. Arguimbau,31 B.T.A. 604">31 B.T.A. 604↩.
13. Walter C. Janney,39 B.T.A. 240">39 B.T.A. 240↩.
14. United States v. Pettigrew, supra;O'Rourke v. Commissioner, supra;Buttolph v. Commissioner, supra;Rose v. Grant, supra;Morris v. Commissioner, supra;J. M. Moore, supra;Smith Paper Co., supra;Fletcher American National Bank, supra;C. H. Mead Coal Co., supra;Dorothy Glenn Coal Mining Co.,38 B.T.A. 1154">38 B.T.A. 1154; William A. Webster, supra; Hagger Co., supra; A. J. Crowhurst & Sons, supra.↩
15. Northport Shores, Inc.,31 B.T.A. 1013">31 B.T.A. 1013↩.
16. C. H. Mead Coal Co., supra;Dorothy Glenn Coal Mining Co., supra;William A. Webster, supra;Haggar Co., supra;A. J. Crowhurst & Sons, supra;J. M. Moore, supra↩
17. Wilber National Bank v. United States,294 U.S. 120">294 U.S. 120↩.
18. May Rogers,31 B.T.A. 994">31 B.T.A. 994↩, and cases cited therein.
19. Sutton v. United States,256 U.S. 575">256 U.S. 575; Utah Power & Light Co. v. United States,243 U.S. 389">243 U.S. 389; Wilber National Bank v. United States, supra;Darling v. Commissioner, 49 Fed.(2d) 111; certiorari denied, 283 U.S. 866">283 U.S. 866; Searles Real Estate Trust,25 B.T.A. 1115">25 B.T.A. 1115; Binder v. Welch, supra.↩