*1510 Consents to a determination, assessment, and collection after the expiration of the statutory period as set out in section 250(d) of the Revenue Acts of 1918 and 1921, of deficiencies asserted against a Virginia corporation were executed by the Commissioner and two of the former officers of the corporation, subsequent to its dissolution and after the expiration of the period allowed by the Virginia statutes within which the affairs of a dissolved corporation might be wound up. Held, the former officers of the corporation were without authority to execute such consents; the consents were invalid and ineffective; the statutory period had expired prior to the enactment of the Revenue Act of 1926 and before any determination, assessment or collection of the deficiencies had been made by the Commissioner; and collection of the asserted deficiencies from petitioner as transferee is now barred.
*537 Petitioner contests the liability asserted against it as a transferee of a corporation, now dissolved, for*1511 income and profits taxes of the corporation as follows:
| 1917 | $8,803.16 |
| 1918 | 26,925.81 |
| Jan. 1 to Oct. 14, 1919 | 15,001.37 |
Of the several allegations of error set forth in its pleadings, petitioner makes and relies chiefly upon the following issues:
(a) Whether the petitioner can be held liable for taxes alleged to be due from the Marion County Lumber Corporation inasmuch as the latter was not named by the respondent as the transferor of the petitioner in the deficiency notice dated December 30, 1927.
(b) Whether the petitioner is the actual transferee, within the meaning of section 280 of the Revenue Act of 1926, of assets of the Marion County Lumber Corporation.
(c) Whether the collection of any taxes asserted to be due from the petitioner as an alleged transferee is barred by the statute of limitations.
FINDINGS OF FACT.
The petitioner, the Camp Manufacturing Company, is a corporation organized under the laws of the Commonwealth of Virginia. Early in 1920 it acquired the outstanding stock of the Marion County Lumber Corporation.
*538 The Marion County Lumber Corporation was a corporation organized under the laws of Virginia, having its*1512 principal office at Franklin, Virginia. It was dissolved on December 31, 1920. No liquidating agents for this corporation were ever appointed, either by the corporation itself or by a court of competent jurisdiction. At the time of its dissolution the board of directors of said corporation consisted of six members.
The Marion County Lumber Company was a corporation organized under the laws of South Carolina, having its principal office at Marion, South Carolina. It was dissolved on February 4, 1914.
The board of directors of the Camp Manufacturing Company, at a meeting held on February 28, 1920, adopted a resolution of which the pertinent provisions are the following:
WHEREAS, This Company is the owner and holder of the entire outstanding capital stock of Marion County Lumber Corporation, a Virginia Corporation, the Carolina Timber Company, a North Carolina Corporation, and the Crystal River Lumber Company, a Florida Corporation, and
WHEREAS, the said corporations each own certain real and personal property and assets, and each owes certain indebtedness, and each is engaged in a similar business to that of this company, and it is thought that the business and property*1513 of all of the said companies can be handled to greater advantage and more economically under the direct ownership and management of this company:
NOW, THEREFORE, BE IT RESOLVED, That this company acquire by proper deeds and other proper instruments of conveyance, transfer and assignment, all of the property, real and personal, and all of the assets of every kind, character and description of each of the three said companies, and agree that it will so utilize and handle the property and assets so received by it as to cause to be paid all of the indebtedness, now existing or which may hereafter arise, of each of the said companies, * * *
* * *
Immediately thereafter and pursuant to said resolution, petitioner acquired by deeds of record all of the real properties of the Marion County Lumber Corporation and assumed and took possession of the personal property of this corporation. The records of the Camp Manufacturing Company (journal pages 220, 221 and 222) disclose the various assets and liabilities of the Marion County Lumber Corporation taken over by the petitioner - the assets totaling $840,513.70 and the liabilities totaling $331,734.21. The journal also shows the following*1514 entry in August, 1920, on page 437:
| Debit | Credit |
| $826,859.92 Marion County Lumber Corporation Stock | $506,276.67 |
| Surplus "Special" | 320,583.25 |
| In adjustment of assets and liabilities of Marion County Lumber Corporation, direct ownership of which taken over by Camp Manufacturing Company in accordance with resolution of Board of Directors of February 28, 1920. |
*539 From petitioner's records we find that the value of the assets which were transferred to it was materially in excess of the deficiencies asserted by respondent against it as transferee.
The tax returns of the Marion County Lumber Corporation for the taxable periods involved in this proceeding were filed with the Collector of Internal Revenue at Richmond, Virginia, as follows:
For the year 1917, on March 30, 1918
For the year 1918, on June 12, 1919; (a tentative return having previously been filed within the statutory period)
For the year 1919, on March 15, 1920, on an information return of a subsidiary company, and the income was included in the Camp Manufacturing Company's return for the calendar year 1919, which was filed May 13, 1920.
On August 2, 1927, a deficiency notice was mailed*1515 by respondent to the Marion County Lumber Company, Franklin, Virginia, asserting against it the deficiencies here in controversy.
On September 30, 1927, a petition was filed by Burton J. Ray and other stockholders of the Marion County Lumber Corporation, dissolved (Docket No. 31580), appealing from the determination set forth in said notice of August 2, 1927, addressed to the Marion County Lumber Company, Franklin, Virginia. Upon motion of respondent that appeal was dismissed by this Board, on December 4, 1930, for lack of jurisdiction. Thereafter, on December 27, 1930, these deficiencies were assessed against the Marion County Lumber Corporation. They have not been paid. Long before making this assessment, respondent had knowledge that the assets of the Marion County Lumber Corporation had been taken over by petitioner. He was so advised by a report of the revenue agent in charge, Richmond, Virginia, dated June 18, 1923, again by a report of the timber section of the Bureau of Internal Revenue, dated December 1, 1923, and once again by a letter addressed to him on November 9, 1925, by George W. Ward, attorney in fact of petitioner.
Responding to several requests*1516 by respondent, the Marion County Lumber Corporation, or its former officers after its dissolution, filed consents as follows:
| Date filed | Year involved | Period of time waived | Signed by |
| Oct. 30, 1920 | 1917 | Unlimited assessment | |
| waiver | J. L. Camp, president | ||
| Dec. 19, 1922 | 1917 | Unlimited assessment | J. L. Camp, president |
| and collection waiver | |||
| Burton J. Ray, asst. | |||
| secretary | |||
| 1917 | One year from date | ||
| signed by taxpayer | J. L. Camp, president | ||
| Dec. 11, 1923 | 1918 | ||
| 1917 | Limited to one year | J. L. Camp, president | |
| Nov. 24, 1924 | 1918 | extension of stat- | Burton J. Ray, asst. |
| utory period | secretary | ||
| July 17, 1925 | 1917 to 1920, incl | Limited to Dec. 31, | |
| 1926 | J. L. Camp, president | ||
| Sept. 28, 1925 | 1917 to 1920, incl | Limited to Dec. 31, | |
| 1926 | J. L. Camp, president | ||
| Oct. 18, 1926 | 1917 to 1919, incl | Limited to Dec. 31, | |
| 1927 | P. R. Camp, president | ||
| Burton J. Ray, asst. | |||
| secretary |
*540 These consents were signed by the respondent or in his behalf. P. R. Camp, J. L. Camp, and Burton J. Ray were members of this board of directors of the corporation prior to and at the time of its*1517 dissolution. The other directors were not consulted and had no knowledge of the action of these three in executing and filing these consents. These directors owned no stock in the Marion County lumber Corporation at the time of its dissolution.
The deficiency notice from which this appeal is taken was mailed to petitioner on December 30, 1927.
OPINION.
GOODRICH: Section 250(d) of the Revenue Acts of 1918 and 1921 required that the amount of taxes due under the returns for the taxable periods before us be determined and assessed within five years after they were due or were made. This statutory period with respect to the 1917 return expired on March 30, 1923; with respect to the 1918 return, on June 12, 1924; with respect to the 1919 return, on May 13, 1925. Prior thereto no determination, assessment or collection of the deficiencies here involved was made by respondent, who contends, however, that these statutory periods were extended by means of consents in writing by both the taxpayer and the Commissioner as by statute provided. He, therefore, on August 2, 1927, issued a notice of deficiency to the Marion County Lumber Company (although he meant Corporation*1518 ); assessed these deficiencies against the Corporation on December 27, 1927; and on December 30, 1927, issued a notice to petitioner of transferee liability. Let us first consider the consent upon which respondent relied in taking these several steps.
The consent was dated October 18, 1926; was executed by P. R. Camp and Burton J. Ray, both former officers and directors of the Marion County Lumber Corporation (which was dissolved on December 31, 1920); and purported to extend until December 31, 1927, the time within which taxes for the years 1917, 1918 and 1919 might be assessed. Section 3810 of the Virginia Statutes provides in part as follows:
All corporations, whether they expire by their own limitations or are otherwise dissolved, shall, nevertheless, be continued for such length of time, not exceeding three years, from such dissolution or expiration, as may be necessary for the purpose of prosecuting and defending suits by or against them, and enabling them gradually to settle and close their business, to dispose of and convey their property, and to divide their capital, but not for the purpose of continuing the business for which said corporation shall have been*1519 established. If the affairs of any such corporation shall not be wound up by its directors within three years from such dissolution or expiration, they shall be wound up in the manner provided by Section 3813. [Italics supplied.]
*541 Section 3812 of the Virginia Statutes provides:
Upon the dissolution of any corporation under the provisions of this chapter the directors or other governing body, by whatever name it may be known, unless action to the contrary be taken as provided in the following section, shall be trustees thereof, with full power to settle the affairs, collect the outstanding debts, sell and cause to be conveyed property, real and personal and divide the money and other property among the stockholders according to their respective rights, after paying its debts.
Section 3813 provides that on application of any creditor or stockholder of a dissolved corporation, any court having equitable jurisdiction in the principal place of business of the corporation may continue the directors, as trustees, or appoint a receiver or receivers to take charge of the estate, with power to prosecute and defend suits and "to do all other acts which might be done*1520 by such corporations, if in being, that may be necessary for the final settlement of the unfinished business of the corporation," and that "The court shall have jurisdiction of such application and of all questions arising in the proceedings thereon, and may make such orders and decrees and issue such injunctions therein as justice and equity shall require."
So far as this record discloses (and the burden of proof in this matter was upon respondent), no court of competent jurisdiction ever continued the directors as trustees, or appointed a receiver for the company or in any other way continued the powers of the corporation or its representatives, as provided in section 3813, beyond the period of three years after dissolution as provided in section 3810.
It is apparent therefore that when this consent was given the existence of the corporation had completely terminated. It was without power of any kind; its former officers were without authoriity to act for it, and the period within which its affairs might be wound up had passed. Consequently, the consent of October 18, 1926, was invalid and ineffective. *1521 ; ; ; ; .
Likewise invalid and ineffective, and for the same reason, were the consents of July 17, 1925, and September 28, 1925, which purported to extend the statutory period for assessment to December 31, 1926. It thus appears that respondent had been barred from all action with respect to these deficiencies prior to the enactment of the Revenue Act of 1926; consequently, the provisions of section 280 of that act afford him no relief; ; ; ; and collection of the deficiencies here asserted against petitioner as transferee is barred by the statute of limitations. It becomes unnecessary *542 to consider the other issues raised by petitioner. Pursuant to section 601(e) of the 1928 Act, there will be entered,
Judgment of no deficiency.