*1971 1. The whole of a community estate in California should be included in the gross estate of the deceased husband.
2. The Commissioner is not estopped from reasserting a deficiency by reason of his having theretofore erroneously abated the assessment and refunded the tax paid. The interest paid on the amount of refund does not constitute a part of the reasserted deficiency.
3. The assessment and collection of the tax here involved are not barred by limitation.
*1066 This proceeding if for the redetermination of a deficiency in estate tax in the amount of $338.09. At the hearing respondent moved that the amount of the deficiency be increased in the amount of $50.66.
The issues involved are:
1. Whether the whole, or only one-half of a community estate, held by husband and wife in California, should be included in the gross estate of the deceased husband.
2. A claim in abatement having been allowed for the full amount of the original assessment, and a refund made of the total amount of payment of same, may the Commissioner reassert that claim*1972 of a deficiency of estate tax?
3. Is the tax liability, if any ever existed, barred by the statute of limitation?
4. Should the motion of respondent for an increase in deficiency be granted?
FINDINGS OF FACT.
Bernard P. Lanteri died in California on October 21, 1921. All his estate was, under the laws of California, community property belonging to himself and his wife.
L. G. Wolfe was appointed administrator of the estate, and qualified and acted as such. He filed an estate-tax return on October 5, 1922. That return showed a tax due of $290.60, which was paid. The Commissioner determined that there was a deficiency in the amount of $47.49, and so notified the administrator, who paid the same. The administrator thereafter filed a claim for abatement of the whole amount so paid. On April 20, 1925, the claim for abatement was allowed and the full amount thereof refunded to the administrator, together with $50.66 interest.
On July 30, 1926, the Commissioner mailed to L. G. Wolfe, as administrator, a notice of deficiency in the amount of $338.09, being the amount refunded, but not including the $50.66 interest.
OPINION.
LOVE: In disposing of the first issue, *1973 we deem it unnecessary to say more than that that issue is now settled by a number of decisions of this Board, as well as by appellate courts, adversely to the petitioner. On that issue the action of the Commissioner is approved.
*1067 With reference to the second issue, we will say that the prior decisions of the Board are controlling. In those decisions, it is specifically held that an erroneous refund may be included in the amount of deficiency finally determined by the Commissioner. See , . The action of the Commissioner on that issue is approved. The cases last above cited are authority for denying, and we hereby deny, respondent's motion to increase the deficiency so as to include the interest paid on the amount refunded.
We come now to a consideration of the third issue, that is, the question of limitation. Bernard P. Lanteri died October 21, 1921. The effective date of the 1921 Act is November 23, 1921, hence this case comes under the provisions of the 1918 and subsequent Acts affecting the 1921 Act. The due date of the tax was on or before October 21, 1922 (sec. *1974 406, Revenue Act of 1918). The deficiency notice involved in this proceeding was mailed to petitioner on July 30, 1926. The statutes which control the question of limitation in this case are the following sections of the Revenue Act of 1926:
SEC. 318. (a) If after the enactment of this Act the Commissioner determines that any assessment should be made in respect of any estate or gift tax imposed by the Revenue Act of 1917, the Revenue Act of 1918, the Revenue Act of 1921, or the Revenue Act of 1924, or by any such Act as amended, the Commissioner is authorized to send by registered mail to the person liable for such tax notice of the amount proposed to be assessed, which notice shall, for the purposes of this Act, be considered a notice under subdivision (a) of section 308 of this Act. In the case of any such determination the amount which should be assessed (whether as deficiency or additional tax or as interest, penalty, or other addition to the tax) shall be computed as if this Act had not been enacted, but the amount so computed shall be assessed, collected, and paid in the same manner and subject to the same provisions and limitations (including the provisions in case of*1975 delinquency in payment after notice and demand and the provisions prohibiting claims and suits for refund) as in the case of a deficiency in the tax imposed by this title, except that in the case of an estate tax imposed by the Revenue Act of 1917, the Revenue Act of 1918, or the Revenue Act of 1921, or by any such Act as amended, the period of limitation prescribed in section 1109 of this Act shall be applied in lieu of the period prescribed in subdivision (a) of section 310.
SEC. 308. (a) If the Commissioner determines that there is a deficiency in respect of the tax imposed by this title, the Commissioner is authorized to send notice of such deficiency to the executor by registered mail. Within 60 days after such notice is mailed (not counting Sunday as the sixtieth day), the executor may file a petition with the Board of Tax Appeals for a redetermination of the deficiency. Except as otherwise provided in subdivision (d) or (f) of this section or in section 312 or 1001, no assessment of a deficiency in respect of the tax imposed by this title and no distraint or proceeding in court for its collection shall be made, begun, or prosecuted until such notice has been mailed to the*1976 executor, nor until the expiration of such 60-day period, nor, if a petition has been filed with the Board, until the decision of the Board has *1068 become final. Notwithstanding the provisions of section 3224 of the Revised Statutes the making of such assessment or the beginning of such proceeding or distraint during the time such prohibition is in force may be enjoined by a proceeding in the proper court.
SEC. 1109. (a) Except as provided in sections 277, 278, 310, and 311 -
(1) Notwithstanding the provisions of section 3182 of the Revised Statutes or any other provision of law, all internal-revenue taxes shall (except as provided in paragraph (2) or (3) of this subdivision) be assessed within four years after such taxes became due, and no proceeding in court without assessment for the collection of such taxes shall be begun after the expiration of five years after such taxes became due.
(2) In case of a false or fraudulent return with intent to evade tax, of a failure to file a return within the time required by law, or of a willful attempt in any manner to defeat or evade tax, the tax may be assessed, or a proceeding in court for the collection of such tax may*1977 be begun without assessment, at any time.
(3) Where the assessment of any tax imposed by this Act or by prior Act of Congress has been made (whether before or after the enactment of this Act) within the statutory period of limitation properly applicable thereto, such tax may be collected by distraint or by a proceeding in court (begun before or after the enactment of this act), but only if begun (A) within six years after the assessment of the tax, or (B) prior to the expiration of any period for collection agreed upon in writing by the Commissioner and the taxpayer.
It will be noted that section 318(a) authorizies the sending of a deficiency notice after the enactment of the 1926 Act, pertaining to taxes due under the 1918 Act, as provided for in section 308(a), and further stipulates that the period of limitation shall be as prescribed in section 1109.
Section 308(a) precludes an assessment of such deficiency, pending action by the Board of Tax Appeals. Section 1109(a) prescribes the period of limitation to be four years after the tax became due. The assessment and/or collection of the deficiency hereby redetermined is not barred by limitation.
Judgment will be entered*1978 for the respondent.