Newport Co. v. Commissioner

THE NEWPORT COMPANY, PETITIONER, v. COMMISSIONER OF INTERNAL REVENUE, RESPONDENT.

THE YOUNGSTOWN SHEET AND TUBE COMPANY, PETITIONER, v. COMMISSIONER OF INTERNAL REVENUE, RESPONDENT.

Newport Co. v. Commissioner

Docket Nos. 28149, 35431, 35511.

United States Board of Tax Appeals

24 B.T.A. 1246; 1931 BTA LEXIS 1517;

December 24, 1931, Promulgated

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1. STATUTE OF LIMITATIONS. Waivers executed on behalf of dissolved corporations after the time provided by the laws of the respective corporations' domiciles for winding up their affairs have expired, are invalid and will not extend the statute for making any assessment against such dissolved corporations. Newport Co.,22 B.T.A. 833">22 B.T.A. 833.

2. Id. Where respondent was fully advised of the several corporate dissolutions prior to the expiration of the statute of limitations, petitioners are not estopped to deny the validity of the waivers.

3. Id. Taxing acts, including provisions of limitations embodied therein, are to be construed liberally in favor of the taxpayer. United States v. Undike,281 U.S. 489">281 U.S. 489.

4. Id. The acceptance of a return containing a deduction for amortization of war facilities is not the "tentative" allowance of a deduction for amortization so as to make the statute of limitations inoperative. W. G. Duncan Coal Co.,13 B.T.A. 672">13 B.T.A. 672.

5. Id. Where several corporations in good faith file a consolidated return in which the separate gross income and deductions of each corporation are reported, the filing of such return is such a substantial compliance with the statute relating to the filing of returns as will start the statute of limitations running with respect to each corporation included therein, although it later be determined that one or more of such corporations were not affiliated with the other or others. Continental Oil Co.,23 B.T.A. 311">23 B.T.A. 311.

6. Id. Where the period of limitations for making any assessment against a taxpayer expired before the passage of the Revenue Act of 1926, section 280(b)(1) of that act is not applicable. Caroline J. Shaw, Executrix,21 B.T.A. 400">21 B.T.A. 400.

7. Id. Where the period of limitations for making any assessment against a taxpayer expired after the passage of the 1926 Act, section 280(b)(1) of that act is applicable. Louis Costanzo,16 B.T.A. 1294">16 B.T.A. 1294.

Charles F. Fawsett, Esq., Joseph C. White, Esq., and Richard S. Doyle, Esq., for the petitioners.

J. R. Johnston, Esq., and J. A. Lyons, Esq., for the respondent.

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LOVE

These proceedings are for the redetermination of the liability, if any, of petitioners as transferees. Docket No. 28149 is a proceeding for the redetermination of the liability, if any, of The Youngstown Sheet and Tube Company as transferee of the assets of The Northwestern Iron Company, for deficiencies in income and profits taxes of that corporation for the calendar year 1918 and the six-month period ended June 30, 1919, in the amounts of $703,539.09 and $10,944.88, respectively, as set forth in respondent's deficiency notice to the alleged transferee dated March 10, 1927. Docket No. 35431 is a proceeding for the redetermination of the liability, if any, of The Newport Company as transferee of the assets of the "Newport Mining Company and its affiliated companies" for net deficiencies in income and profits taxes of the affiliated group for the calendar year 1918 and the six-month period ended June 30, 1919, in the amounts of $1,111,003.83 and $57,874.53, respectively, as set forth in respondent's deficiency notice to the alleged transferee dated December 29, 1927, and further detailed in an attached statement as follows:

Affiliated group	Calendar year 1918 deficiency (overassessment)	6 months, 1919 deficiency (overassessment)
Newport Mining Company	$1,141,343.38	($21,157.16)
Dunn Iron Mining Co	(20,279.88)	56,769.95
Newport Turpentine & Rosin Company, Inc. (Ala.)	4,825.42	(326.20)
Newport Turpentine & Rosin Company of Florida	11,021.55	(983.08)
Newport Chemical Works, Inc	169,383.10	25,815.30
Harvest Farms Company	665.93	None.
Nonaffiliated companies	(195,955.67)	(2,244.28)
Net deficiency	1,111,003.83	57,874.53

Docket No. 35511 is a proceeding for the redetermination of the liability, if any, of The Youngstown Sheet and Tube Company as transferee of the assets of the "Steel and Tube Company of America and its affiliated companies" for the same net deficiencies as shown in Docket No. 35431, but in this proceeding the said deficiencies are set forth in respondent's deficiency notice to The Youngstown Sheet and Tube Company dated December 29, 1927.

The pleadings raise a number of issues, one of which is that in each proceeding the statutory period of limitations for making any assessment against either petitioner had expired before the dates on which the above mentioned deficiency notices were mailed. On October 12, 1929, a motion was granted that all three proceedings be consolidated for trial, and that the hearing in the first instance be limited to the question of the statute of limitations.

Briefly, our findings which follow may be grouped under the following general headings: (1) Corporations herein involved, paragraphs 1 to 7, inclusive; (2) 1919 reorganization transactions and corporations dissolved as result thereof, 8 to 10; (3) State statutes keeping corporations alive for winding up affairs after dissolution, paragraph 11; (4) Wisconsin statutes relied upon by respondent, paragraph 12; (5) 1923 reorganization transactions and the corporation dissolved as result thereof, 13 to 19; (6) official capacity of certain individuals, 20 to 34; (7) powers of attorney and authority granted, 35 to 39; (8) returns filed, 40 to 47; (9) affiliation ruling, paragraph 46; (10) waivers filed, 48 to 57; (11) notifications to respondent of corporate dissolutions, 58 to 65; and (12) abatement and refund claims filed, paragraph 66.

FINDINGS OF FACT.

1. The Youngstown Sheet and Tube Company is a corporation organized and existing under the laws of the State of Ohio with its principal office and place of business at Youngstown in that State.

2. The Newport Company is a corporation organized and existing under the laws of the State of Delaware, with an office and place of business at Carrollville, Wis., and with its post office address "Post Office Box M, South Milwaukee, Wisconsin." It was incorporated on July 14, 1919.

3. The Northwestern Iron Company throughout the year 1918 and the six-month period ended June 30, 1919, was a corpoation, duly organized under the laws of Wisconsin on February 9, 1854, with its principal office at Mayville in that State. During the period in controversy approximately 83 per cent of its outstanding capital stock was owned by The Newport Mining Company.

4. During the year 1918 and the first six months of 1919 The Newport Mining Company, The Newport Turpentine and Rosin Company, Inc., The Newport Turpentine and Rosin Company of Florida, The Newport Chemical Works, Inc., and The Harvest Farms Company were corporations organized under the laws of the States of Maine, Alabama, Florida, Maine and Wisconsin, respectively. Each of these corporations had its principal business offices at Milwaukee, Wis.

5. The Dunn Iron Mining Company is, and during the period here in question was, a corporation, organized under the laws of the State of Wisconsin, with its principal business office in that state.

6. The Steel and Tube Company of America was incorporated under the laws of the State of Delaware on June 14, 1918.

7. The Mayville Iron Company was organized as a corporation during March, 1923, and at that time issued a certain amount of its capital stock for cash.

8. On July 30, 1919, after appropriate resolutions duly adopted at meetings of each company's stockholders and directors, two agreements were entered into: One between The Newport Mining Company, The Northwestern Iron Company, and The Steel and Tube Company of America; and the other between The Newport Mining Company, The Newport Chemical Works, Inc., The Newport Company, and two other corporations not here material. Both agreements were fully carried out, and were effective as of the close of business on June 30, 1919. As far as it is material in these proceedings the agreements provided (1) for the transfer by The Newport Mining Company of all the outstanding capital stock of The Northwestern Iron Company held by The Newport Mining Company and all the assets of The Northwestern Iron Company to The Steel and Tube Company of America in exchange for capital stock of The Steel and Tube Company of America of no greater aggregate par or face value than the capital stock of The Northwestern Iron Company; (2) for the transfer by The Newport Mining Company of all the capital stock of The Dunn Iron Mining Company to The Steel and Tube Company of America in exchange for capital stock of the latter company of no greater aggregate par or face value than the capital stock of The Dunn Iron Mining Company; (3) for the transfer by The Newport Mining Company of a majority of its capital stock and the greater part of its assets, consisting of its ore properties, plants, ore inventories, timberlands, and related contracts to The Steel and Tube Company of America in exchange for capital stock of the latter company of no greater aggregate par or face value than the capital stock of The Newport Mining Company so transferred; (4) for the transfer by The Newport Mining Company of the remainder of its capital stock and the balance of its assets to The Newport Company in exchange for capital stock of the latter company of no greater aggregate par or face value than the capital stock of The Newport Mining Company so transferred; (5) for the transfer by The Newport Mining Company of all the outstanding capital stock and assets of The Newport Chemical Works, Inc., and two other corporations (not here material) to The Newport Company in exchange for capital stock of The Newport Company of no greater aggregate par or face value than the capital stock of the three old corporations; (6) for the assumption by The Steel and Tube Company of America, in addition to certain other specified liabilities, of "all obligations and liabilities present or future, fixed or contingent * * * of said The Newport Mining Company * * * excepting charges or liabilities which matured or became due and payable prior to July 1, 1919"; (7) for the assumption by The Steel and Tube Company of America "of all of the liabilities of said The Northwestern Iron Company of every kind and nature"; (8) for the assumption by The Newport Company of "all the liabilities of said Newport Chemical Works, Incorporated"; (9) for the assumption by The Newport Company of "all the liabilities of said The Newport Mining Company of every kind and nature, excepting only those assumed by The Steel and Tube Company of America"; and (10) for the dissolution "after the consolidation as provided for herein shall be completed" of five corporations, among which were The Northwestern Iron Company, The Newport Mining Company, and The Newport Chemical Works, Inc. Both agreements referred to the several provisions contained therein as "such reorganization, consolidation or merger."

9. At some time during the year 1919 The Newport Company also took over all of the assets of The Newport Turpentine and Rosin Company, Inc., the Alabama corporation, and The Newport Turpentine and Rosin Company of Florida and agreed to assume the liabilities of the companies taken over.

10. Shortly after the execution of the two agreements mentioned in paragraph 8 above the following corporations were legally dissolved on the following dates, to wit: (1) The Northwestern Iron Company, October 15, 1919, under the laws of Wisconsin; (2) and (3) The Newport Mining Company and The Newport Chemical Works, Inc., March 1, 1920, by the Supreme Judicial Court of the State of Maine "without the appointment of a trustee or receiver"; (4) The Newport Turpentine and Rosin Company, Inc., September 10, 1919, in accordance with section 3510 of the Code of Alabama of 1907, as amended by the act of the Legislature of the State of Alabama, approved February 9, 1915; and (5) The Newport Turpentine and Rosin Company of Florida, September 12, 1919.

11. Section 1764 of the 1919 Wisconsin Statutes (now section 181.02 Wisconsin Statutes, 1929) provides in part that all corporations which shall be dissolved "shall nevertheless continue to be bodies corporate for three years thereafter for the purpose of prosecuting and defending actions, and of enabling them to settle and close up their business, dispose of and convey their property and divide their assets and for no other purpose * * *."

Section 81 of chapter 51 of the Revised Statutes of Maine, 1916, provides that "corporations, whose charters expire or are otherwise terminated, have a corporate existence for three years thereafter; to prosecute and defend suits; to settle and close their concerns; to dispose of their property; and to divide their capitals."

Section 3516 of the Alabama Code of 1907 (now section 7069 of the Code of Alabama, 1923) provides in part that corporations which are dissolved "exist as bodies corporate for the term of five years after such dissolution, for the purpose of prosecuting or defending suits, settling their business, disposing of their property, and dividing their capital stock, but not for the purpose of continuing their business * * *."

Section 4092 of the Florida Revised Statutes, 1920 (now section 6021 of the Compiled General Laws of Florida, 1927) provides that "all corporations shall continue bodies corporate for the term of three years after the time of dissolution from any cause, for the purpose of prosecuting or defending suits by or against them and enabling them to gradually settle their concerns, to dispose of and convey their property and to divide their capital stock, but for no other purpose."

12. Section 226.02(10) of the Wisconsin Statutes, 1929, provides as follows:

All foreign corporations and the officers and agents thereof doing business in this state, shall be subjected to all the liabilities and restrictions that are, or may be imposed upon corporations of like character, organized under the laws of this state, and shall have no other or greater powers. Every contract made by or on behalf of any such foreign corporation, affecting the personal liability thereof or relating to property within this state, before it shall have complied with the provisions of this section, shall be wholly void on its behalf and on behalf of its assigns, but shall be enforceable against it or them.

Section 226.12 of the Wisconsin Statutes, 1929, provides as follows:

Liability of Foreign, not acting. - An action for the recovery of money may be commenced and prosecuted to judgment against a corporation created by or under the laws of any other state or country or of the United States although such corporation may have ceased from any cause whatever to act in whole or in part as a corporation in the same manner as though it had not so ceased to act; and satisfaction of the judgment may be enforced out of any property in this state which such corporation owns or has any interest in or would own or have any interest in had the same not ceased to act as aforesaid, whether held or controlled by such corporation or by a trustee, assignee, agent, or other person for the use and benefit in whole or in part of such corporation or the creditors thereof or both; and any attachment issued in such action may be executed on any such property.

13. The principal assets of the Northwestern Iron Company mentioned in paragraph 8(1) above that were transferred to The Steel and Tube Company of America as of June 30, 1919, consisted of two blast furnaces, coke oven, plant, by-product coke oven plant and a local deposit of ore and accessories that go with a plant of that character and were known and will be referred to hereafter as the "Mayville Properties." They were located at Mayville, Wis.

14. On January 6, 1923, after appropriate resolutions duly adopted at meetings of each company's stockholders and directors, an agreement was entered into between The Steel and Tube Company of America and The Youngstown Sheet and Tube Company. This agreement was fully carried out in accordance with its terms. As far as it is material here it provided for the sale, conveyance, assignment, and transfer by The Steel and Tube Company of America to The Youngstown Sheet and Tube Company of all its property and assets, franchises and business, and good will (subject in so far as affected by certain specified liens) in consideration for a cash price in the aggregate amount of (a) $14,509,953.75, (b) $110 per share for each outstanding share of preferred stock of The Steel and Tube Company of America, which number of shares should not exceed 165,424 or an amount of $18,196,640, (c) an amount equal to the unpaid accrued dividends on said preferred stock, and (d) interest at 5 per cent on $14,509,953.75, if not fully consummated before a certain date. The agreement also provided as follows:

In addition to said cash Youngstown shall assume and agree to pay or perform as the case may be, all the debts, obligations, and liabilities of Steel and Tube of every kind and description. Steel and Tube agrees that all returns reports and statements which shall hereafter be made by Steel and Tube or by any of its subsidiary companies with reference to federal or state taxes shall be in form approved by Youngstown or its counsel and that all claims and litigation against Steel and Tube in respect of any such taxes shall be handled under the direction of Youngstown or its counsel.

Exhibit E of the said agreement set forth a list of obligations and liabilities of The Steel and Tube Company of America not shown on its books and in this list appeared the following paragraph:

Possible Taxes and Expenses in connection with Newport Mining Company: In the opinion of counsel any additional liability arising out of mining assets of Newport Mining Company, out of Northwestern Iron Company, and out of Harrow Spring Company is an obligation of Steel and Tube under its 1919 Consolidation Agreements. The best estimate at present is that refunds will offset any liabilities.

Exhibit A of the said agreement was a list of sixteen corporations whose capital stock at the time of the agreement was either partly or wholly owned by The Steel and Tube Company of America. Among the 100 per cent owned corporations were The Dunn Iron Mining Company and The Harvest Farms Company. The record does not show how or at what time The Steel and Tube Company of America became the owner of the capital stock of The Harvest Farms Company. Paragraph ninth of the said agreement was as follows:

In case Youngstown shall so elect the title to the properties to be conveyed, or any of them, shall be conveyed, assigned and transferred by Steel and Tube to any other corporation all of the stock of which, except directors' shares, shall then be owned, directly r indirectly, by Youngstown. In case Youngstown shall elect to have said properties or any part thereof, conveyed, assigned, and transferred to any such other corporation, then all or any of the debts, obligations, and liabilities of Steel and Tube which Youngstown by any of the foregoing provisions has agreed to assume may be assumed by such other corporation and the instruments of assumption thereof and indemnification there-against hereinbefore required to be executed and delivered by Youngstown may be executed and delivered by such other corporation, provided that the performance of the obligations undertaken by such instrument or instruments shall be guaranteed by Youngstown.

15. The Mayville Properties mentioned in paragraph 13 above and the capital stock of The Dunn Iron Mining Company and The Harvest Farms Company were a part of the assets of The Steel and Tube Company of America for which The Youngstown Sheet and Tube Company paid the cash consideration provided for in the said agreement of January 6, 1923. Exhibit D of the said agreement of January 6, 1923, was a consolidated balance sheet of The Steel and Tube Company of America as of November 30, 1922. Among the "assets" in this balance sheet was the account "Mayville Properties $6,658,100.21."

16. On June 29, 1923, The Steel and Tube Company of America gave The Youngstown Sheet and Tube Company a receipt for $32,706,593.75, pursuant to the agreement between the parties dated January 6, 1923.

17. On June 29, 1923, all of the assets of The Steel and Tube Company of America, except The Mayville Properties, were conveyed direct to The Youngstown Sheet and Tube Company.

18. On June 29, 1923, the Mayville Properties were conveyed by The Steel and Tube Company of America direct to the Mayville Iron Company. The latter corporation was organized by The Youngstown Sheet and Tube Company for the purpose of taking over The Mayville Properties and its capital stock (except for a few qualifying shares) is all owned by The Youngstown Sheet and Tube Company. At the time of the hearing The Mayville Iron Company still owned The Mayville Properties.

19. The Steel and Tube Company of America was dissolved under the laws of the State of Delaware on November 30, 1926.

20. H. J. Schlesinger was president of The Northwestern Iron Company, The Newport Turpentine and Rosin Company, Inc., and The Newport Turpentine and Rosin Company of Florida up to the time of the dissolution of those corporations in the year 1919, and vice president of The Newport Mining Company up to the date of its dissolution in 1920. He was also vice president of The Newport Company up until the spring of 1922. At that time he severed his connections as an officer, director, or otherwise of The Newport Company and all of its subsidiaries and thereafter had no connection in any capacity whatever with The Newport Company or any of its subsidiaries, The Youngstown Sheet and Tube Company or any of its subsidiaries, or The Newport Mining Company or any of its subsidiaries.

21. A. A. Schlesinger was president of The Newport Mining Company and The Newport Chemical Works, Inc., up to the time of the dissolution of those corporations in the spring of 1920, and was an officer of The Northwestern Iron Company at the time of its dissolution in 1919. He was also president of The Steel and Tube Company of America up until some time in 1923. After that time he was a minority stockholder and director of The Steel and Tube Company of America. He is now and has been continuously, except for a short period in 1922 and 1923, president of The Newport Company. During this period in 1922 and 1923 he was chairman of the Board of Directors of The Newport Company and one Schaeffer was president of that corporation. Schlesinger did not consult with Charles F. Fawsett in regard to tax matters prior to 1926.

22. W. J. Morris was treasurer of The Harvest Farms and The Dunn Iron Mining Company. Subsequent to the acquisition of the assets of The Steel and Tube Company of America by The Youngstown Sheet and Tube Company he was one of the vice presidents of the latter corporation and, together with W. N. McDonald and J. H. Hall, handled the tax matters for that corporation.

23. A. W. Westerman was secretary for The Newport Company until about 1925.

24. James E. Kupperian is vice president, auditor, and secretary of The Newport Company and has held those positions since the latter part of 1927. Prior to that time he had charge of the accounting department of that corporation for a number of years. He did a lot of work in connection with supervising income-tax matters for the company, but did not consider himself in charge of such work.

25. Charles F. Fawsett has been general counsel for The Newport Company since its existence, and during the years 1924 and 1925 he appeared before the Income Tax Unit in relation to tax matters of that corporation and its affiliated companies. He was also retained by The Youngstown Sheet and Tube Company from about the time that corporation took over the assets of The Steel and Tube Company of America, and on October 25, 1924, was elected a director of The Steel and Tube Company of America.

26. W. E. Meub is secretary and treasurer of The Youngstown Sheet and Tube Company. He has held that office for approximately ten years. He held that office in 1923 when an agreement was consummated between The Youngstown Sheet and Tube Company and The Steel and Tube Company of America.

27. J. H. Hall was the tax accountant for The Youngstown Sheet and Tube Company. He worked very closely in connection with the general counsel of that company and was under the general supervision of W. N. McDonald. He attended several conferences with the Income Tax Unit.

28. W. N. McDonald has been comptroller of The Youngstown Sheet and Tube Company since August 1, 1920. His duties consisted in part of supervising matters that camp up in reference to tax liabilities.

29. Price, Waterhouse and Company have been auditors for The Youngstown Sheet and Tube Company for twenty years.

30. W. M. Smith has been resident manager in Washington, D.C., for Price, Waterhouse and Company for about ten years. On October 3, 1925, he signed the firm name of "Price, Waterhouse & Co." to a letter addressed to the respondent enclosing several "duly executed waivers" for The Steel and Tube Company of America for the years 1918 and 1919, The Dunn Iron Mining Company for the year 1919 and ten other corporations not here material. In doing so, he acted under instructions from the general counsel of The Youngstown Sheet and Tube Company, one Manchester.

31. F. P. Byerly was an employee of the firm of Price, Waterhouse and Company.

32. George F. Smithson is a conferee of the Special Advisory Committee of the Bureau of Internal Revenue, and as such has since about November, 1928, had under consideration the income-tax liability of The Northwestern Iron Company, The Steel and Tube Company of America and affiliated companies, and The Newport Mining Company and affiliated companies.

33. A meeting of the stockholders of The Steel and Tube Company of America was held on October 25, 1924, at which meeting Leonard Kennedy, H. H. Springford, A. A. Schlesinger, E. G. Wilmer and C. F. Fawsett were elected directors of that company.

34. On November 26, 1924, H. H. Springford was elected president and treasurer, Edward G. Wilmer, vice president, and Frederick R. Wahl, secretary, of The Steel and Tube Company of America.

35. On August 6, 1923, The Steel and Tube Company of America appointed William M. Smith of Price, Waterhouse and Company, its true and lawful attorney in fact to represent it before the Treasury Department with respect to its liability for income and profits taxes.

36. On February 28, 1924, The Youngstown Sheet and Tube Company executed a power of attorney authorizing george B. Furman of Washington, D.C., to represent that corporation before the Internal Revenue Bureau "in connection with the Government audits which have been made of The Steel and Tube Company of America and its affiliated or subsidiary companies in respect to its Income and Excess Profits taxes for the calendar year 1918."

37. On January 30, 1925, both petitioners, The Newport Company and The Youngstown Sheet and Tube Company, executed a power of attorney appointing Charles F. Fawsett, J. F. Kupperian and F. P. Byerly "their true and lawful attorneys with full power and authority to appear for and represent them and The Newport Mining Company which was dissolved in the year 1920" or any of its subsidiaries, including The Northwestern Iron Company and The Newport Chemical Works, Inc., "severally and separately, or jointly or together" in all income-tax matters involving such corporations for the years 1916 to 1919, inclusive. The last two paragraphs of this instrument are as follows:

This authorization and power of attorney shall take the place of the power of attorney heretofore granted to Charles F. Fawsett, J. E. Kupperian and Charles H. Brook, dated the 5th day of September, 1923.

IN WITNESS WHEREOF said The Newport Companythe Youngstown Sheet & Tube Company as successors in interest of the said Newport Mining Company and its subsidiaries have respectively caused these presents to be duly executed by their proper officers, attested by their respective secretaries under their respective corporate seals this 30th day of January, 1925.

38. On February 26, 1925, The Youngstown Sheet and Tube Company executed a power of attorney authorizing C. H. Rose, Charles F. Fawsett, J. E. Kupperian, and F. P. Byerly to represent that corporation before the Internal Revenue Bureau "in all matters pertaining to the Federal Income and Excess Profits Taxes of The Steel and Tube Company of America and its subsidiary companies, The Newport Mining Company, Dunn Iron Mining Company, Northwestern Iron Company for the years 1916 to 1919, inclusive, hereby revoking and annulling all prior Powers of Attorney; and to take such steps and proceedings and do all things which said attorneys and/or any one or more of them deem necessary and proper therefor or therein to take or do, with all the powers and authorities which said principals might have if present and acting, hereby ratifying, approving and confirming all that said Attorneys-in-fact and/or any one or more of them may do."

39. A. A. Schlesinger understod that he did not have authority to bind a corporation for tax liabilities that had expired under the statute of limitations. He did not give either Westerman or Kupperian any authority to bind any of the corporations for which they transmitted certain waivers hereinafter mentioned to the Department after the statute of limitations for such years had expired.

40. On June 15, 1919, "THE NEWPORT MINING COMPANY and Affiliated Companies (as listed in Statement annexed) Controlled by the Schlesinger Interests" filed with the collector of internal revenue for the first district of Wisconsin a consolidated corporation income and profits-tax return (Form 1120) for the calendar year 1918. Approximately one hundred pages of schedules showing separately for each corporation the gross income, deductions and invested capital of sixteen alleged affiliated corporations were included in this return, among which corporations were The Northwestern Iron Company, The Newport Mining Company, The Newport Chemical Works, Inc., The Newport Turpentine and Rosin Company, Inc., The Newport Turpentine and Rosin Company of Florida, The Harvest Farms Company, and The Dunn Iron Mining Company. The return was signed and sworn to by A. A. Schlesinger, president, and A. H. Springford, acting treasurer. Among the consolidated deductions claimed was an amount of $1,211,000.99 for amortization of war facilities claimed under the provision of section 234(a)(8) of the Revenue Act of 1918.

41. On June 15, 1919, a separate "Information return of subsidiary or affiliated corporation whose net income and invested capital are included in return of a parent or principal reporting corporation for purpose of income and profits taxes for calendar year 1918" (Form 1122) was filed with the collector of internal revenue for the first district of Wisconsin by each, The Northwestern Iron Company, The Newport Chemical Works, Inc., The Newport Turpentine and Rosin Company, Inc., The Newport Turpentine and Rosin Company of Florida, The Harvest Farms Company and The Dunn Iron Mining Company. Each of these returns, among other things, disclosed the following facts in connection with the corporation for which the said return was filed, to wit: (1) date and State of incorporation, (2) kind of business, (3) par value and kind of capital stock outstanding at the beginning of the year, (4) the amount of capital stock held during the taxable year by the parent corporation or the same interests, with all changes during the year, (5) name and address of parent corporation, (6) the internal revenue district in which the consolidated return was filed, and (7) the amount of income and profits taxes for the taxable year apportioned to the subsidiary or affiliated corporation making the information return. Each of these information returns was signed and sworn to by two of the principal officers of each respective corporation.

42. On April 14, 1920, "The Newport Company and Subsidiary and Affiliated Companies" filed with the collector of internal revenue for the second district of Wisconsin a consolidated corporation income and profits-tax return (Form 1120) for the calendar year 1919. Attached to this return were schedules showing separately for each corporation the gross income, deductions and invested capital of ten alleged affiliated corporations, among which were The Newport Mining Company, The Newport Chemical Works, Inc., The Newport Turpentine and Rosin Company, Inc., The Newport Turpentine and Rosin Company of Florida, and The Harvest Farms Company. The return was signed and sworn to by A. A. Schlesinger, president, and H. J. Schlesinger, treasurer.

43. On April 14, 1920, separate information returns (Form 1122) for the calendar year 1919 were filed by The Newport Mining Company, The Newport Chemical Works, Inc., The Newport Turpentine and Rosin Company, Inc., The Newport Turpentine and Rosin Company of Florida, and The Harvest Farms Company, naming The Newport Company as the parent company, in whose consolidated return the net income and invested capital of each of the corporations filing a Form 1122 were included. Each of these information returns was signed and sworn to by two of the principal officers of each respective corporation.

44. On May 15, 1920, The Steel and Tube Company of America and tweleve other corporations filed with the collector of internal revenue at Chicago a consolidated corporation income and profits-tax return for the calendar year 1919. Attached to this return were over sixty pages of schedules showing separately for each corporation the gross income, deductions and invested capital of thirteen alleged affiliated corporations, among which were The Steel and Tube Company of America, The Dunn Iron Mining Company and The Northwestern Iron Company. This return was signed and sworn to by two of the principal officers of The Steel and Tube Company of America.

45. An information return (Form 1122) was filed by The Northwestern Iron Company for the calendar year 1919, naming The Steel and Tube Company of America as the parent company, in whose consolidated return the net income and invested capital of The Northwestern Iron Company was included. This return was signed and sworn to by H. J. Schlesinger, president, and A. A. Schlesinger, treasurer.

46. On June 17, 1922, the respondent in a letter addressed to The Newport Company notified that company, among other things, that the following corporations were affiliated during the period from January 1, 1919, to June 30, 1919:

Newport Mining Company

Dunn Iron Mining Company

Newport Chemical Works, Inc.

The Northwestern Iron Company

Northwestern Light and Power Company

Northwestern Milling Company

Northwestern Limestone and Slag Company

Harrow Spring Company

Newport Turpentine and Rosin Company, Inc.

Newport Turpentine and Rosin Company of Florida

Gogebic Steel Company

Harvest Farms Company

The Milwaukee Coke and Gas Company

The Milwaukee Solvay Coke Company

Elkhorn Piney Coal Mining Company

St. Clair Coal Mining Company

This letter referred to "The Consolidated income and profits tax returns filed by your Company * * * and The Steel and Tube Company of America for the taxable years 1919 and 1920," and, after setting forth the above list of corporations which the respondent ruled were affiliated during the period January 1, 1919, to June 30, 1919, the letter stated:

The above group should, therefore, have filed a consolidated income and profits tax return for the period from January 1, 1919, to June 30, 1919.

This letter also contained an affiliation ruling for the period July 1, 1919, to December 31, 1919, stating that a consolidated return should have been filed by such corporations during that period, and, further, that, "In the event that such returns should be needed in the audit of the case, you will be so informed by this office."

47. On or about February 28, 1924, "The Newport Mining Company Subsidiary and Affiliated Companies" filed with the respondent a consolidated corporation income and profits-tax return for the period begun January 1, 1919, and ended June 30, 1919, on which was typed the word "AMENDED." The corporations included in this alleged amended return were the same identical corporations which the respondent had ruled to be affiliated in his letter to The Newport company dated June 17, 1922, and referred to in the preceding paragraph.

48. Three so-called income and profits-tax waivers were filed on behalf of The Northwestern Iron Company. Each of these waivers was filed more than three years after that corporation had been legally dissolved.

The first waiver was transmitted to the respondent in a letter dated December 1, 1924, on the stationery of The Newport Company and signed "NEWPORT MINING COMPANY, By: J. E. Kupperian." The waiver itself was dated December 1, 1924, was for the years 1918 and 1919, and was signed "Northwestern Iron Company, Taxpayer, By H. J. Schlesinger, President." It had the word "Seal" written on it with a circle around the word and a notation on the outside of the circle, "Seal Lost." As to its effective duration the waiver provided in part as follows:

This waiver is in effect from the date it is signed by the taxpayer and will remain in effect for a period of one year after the expiration of the statutory period of limitation within which assessments of taxes may be made for the year or years mentioned, or the statutory period of limitation as extended by Section 277(b) of the Revenue Act of 1924, or by any waivers already on file with the Bureau.

The second waiver was transmitted to the respondent in a letter dated November 23, 1925, on the stationary of The Youngstown Sheet and Tube Company and signed "THE YOUNGSTOWN SHEET AND TUBE COMPANY, J. H. Hall, Assistant Comptroller." The waiver itself was dated November 23, 1925, was for the years 1918 and 1919, and was signed "The Youngstown Sheet and Tube Company successor in interest to NORTHWESTERN IRON COMPANY, Taxpayer, By W. E. Meub, Treasurer." Affixed to this waiver was the corporate seal of The Youngstown Sheet and Tube Company. The waiver was to remain in effect until December 31, 1926.

The third waiver was transmitted to the respondent in a letter dated November 5, 1926, on the stationery of The Youngstown Sheet and Tube Company and signed "THE YOUNGSTOWN SHEET AND TUBE COMPANY, W. N. McDonald, Comptroller." The waiver itself was dated November 2, 1926, was for the years 1917 and 1918 and the 6-month period ended June 30, 1919, and was signed "The Mayville Iron Company successor in Interest to Northwestern Iron Company, Taxpayer, By W. E. Meub, Secretary." Affixed to this waiver was the corporate seal of The Mayville Iron Company. As to its effective duration the waiver provided in part as follows:

This waiver of the time for making any assessment as aforesaid shall remain in effect until December 31, 1927, 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 * * * 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.

49. Four so-called income and profits-tax waivers were filed on behalf of The Newport Mining Company. Each of these waivers was filed more than three years after that corporation had been legally dissolved. The first waiver was dated December 11, 1923, was for the year 1918, and was signed "THE NEWPORT MINING COMPANY, Taxpayer, By H. J. Schlesinger, Vice-President." No seal was affixed to this waiver. As to its effective duration, the waiver provided in part as follows:

This waiver is in effect for one year from the date it is signed by the taxpayer and applies to said The Newport Mining Company and the affiliated companies included in the consolidated return made by The Newport Mining Company for the year 1918.

The second waiver was transmitted to the respondent in a letter dated November 28, 1924, on the stationery of The Newport Company and signed "NEWPORT MINING COMPANY By: J. E. Kupperian." The waiver itself was dated November 28, 1924, was for the years 1918 and 1919 and was signed "THE NEWPORT MINING COMPANY, Taxpayer, By H. J. Schlesinger, Vice-President." Affixed to this waiver was the seal of The Newport Mining Company. The paragraph with respect to its effective duration is the same as that quoted in connection with the first waiver in paragraph 48.

The third waiver was transmitted to the respondent in a letter dated November 25, 1925, on the stationery of The Newport Company and signed "C. W. Westerman, Secretary." The waiver itself was dated November 20, 1925, was for the years 1918 and 1919, and was signed "Newport Mining Company, Taxpayer, by A. A. Schlesinger, President." Affixed to this waiver was the corporate seal of The Newport Mining Company. The waiver was to remain in effect until December 31, 1926.

The fourth waiver was transmitted to the respondent in a letter dated November 6, 1926, on the stationery of The Newport Company and signed "A. A. Schlesinger." The waiver itself was dated November 2, 1926, was for the years 1917 and 1918 and the 6-month period ended June 30, 1919, and was signed "The Youngstown Sheet and Tube Company, By W. E. Meub, Secretary." and "The Newport Company, By A. A. Schlesinger, President. As Successors in Interest to Newport Mining Company." Affixed to this waiver were the corporate seals of each of the so-called successors in interest. The paragraph with respect to its effective duration is the same as that quoted in connection with the third waiver in paragraph 48.

50. Four so-called income and profits-tax waivers were filed on behalf of The Newport Chemical Works, Inc. Each of these waivers was filed more than three years after that corporation had been legally dissolved. The first waiver was transmitted to the respondent in a letter dated February 23, 1924, on the stationery of The Newport Company and signed "C. W. Westerman, Secretary." The waiver itself was undated, but bore the stamp "Received Feb. 26, 1924." It was for the year 1918 and was signed "Newport Chemical Works, Inc., Taxpayer, By H. J. Schlesinger, Vice-President." Affixed to this waiver was the corporate seal of The Newport Chemical Works, Inc. As to its effective duration the waiver provided in part as follows:

This waiver is in effect from the date it is signed by the taxpayer 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.

The second waiver was transmitted to the respondent in a letter dated December 1, 1924, on the stationery The Newport Company and signed "NEWPORT MINING COMPANY, By: J. E. Kupperian." The waiver itself was dated December 1, 1924, was for the years 1918 and 1919, and was signed "Newport Chemical Works, Inc., Taxpayer, by A. A. Schlesinger, President." Affixed to this waiver was the corporate seal of The Newport Chemical Works, Inc. The paragraph with respect to its effective duration is the same as that quoted in connection with the first waiver in paragraph 48.

The third waiver was transmitted to the respondent in a letter dated November 25, 1925, on the stationery of The Newport Company and signed "C. W. Westerman, Secretary." The waiver itself was dated November 20, 1925, was for the years 1918 and 1919, and was signed "Newport Chemical Works, Taxpayer, By A. A. Schlesinger, President." Affixed to this waiver was the corporate seal of The Newport Chemical Works, Inc. The waiver was to remain in effect until December 31, 1926.

The fourth waiver was transmitted to the respondent in a letter dated November 6, 1926, on the stationery of The Newport Company and signed "A. A. Schlesinger." The waiver itself was dated November 6, 1926, was for the years 1917 and 1918 and the 6-month period ended June 30, 1919, and was signed "The Newport Company, Taxpayer, By A. A. Schlesinger, President. As successors in Interest to the Newport Chemical Works." Affixed to this waiver was the corporate seal of The Newport Company. The paragraph with respect to its effective duration is the same as that quoted in connection with the third waiver in paragraph 48.

51. Four so-called income and profits-tax waivers were filed on behalf of The Newport Turpentine and Rosin Company, Inc. (the Alabama corporation). The last three of these waivers were filed more than five years after that corporation had been legally dissolved.

The first waiver was transmitted to the respondent in a letter dated February 23, 1924, on the stationery of The Newport Company and signed "C. W. Westerman, Secretary." The waiver itself was undated, but bore the stamp "Received Feb. 26, 1924." It was for the year 1918 and was signed "Newport Turpentine & Rosin Co. Inc. Ala., Taxpayer, By H. J. Schlesinger, President." Affixed thereto was the corporate seal of The Newport Turpentine and Rosin Company, Inc. The paragraph with respect to its effective duration is the same as that quoted in connection with the first waiver in paragraph 50.

The second waiver was transmitted to the respondent in a letter dated December 1, 1924, on the stationery of The Newport Company and signd "NEWPORT MINING COMPANY, By: J. E. Kupperian." The waiver itself was dated December 1, 1924, was for the years 1918 and 1919, and was signed "Newport Turpentine and Rosin Company, Inc., Taxpayer, By H. J. Schlesinger, President." Affixed to this waiver was the corporate seal of The Newport Turpentine and Rosin Company, Inc. The paragraph with respect to its effective duration is the same as that quoted in connection with the first waiver in paragraph 48.

The third waiver was transmitted to the respondent in a letter dated November 25, 1925, on the stationery of The Newport Company and signed "C. W. Westerman, Secretary." The waiver itself was dated November 20, 1925, was for the years 1918 and 1919, and was signed "Newport Turpentine & Rosin Co. (Alabama) Taxpayer, By A. A. Schlesinger, Vice-President." Affixed to this waiver was the corporate seal of The Newport Turpentine and Rosin Company, Inc. The waiver was to remain in effect until December 31, 1926.

The fourth waiver was transmitted to the respondent in a letter dated November 6, 1926, on the stationery of The Newport Company and signed "A. A. Schlesinger." The waiver itself was dated November 6, 1926, was for the years 1917 and 1918 and the 6-month period ended June 30, 1919, and was signed "The Newport Company, Taxpayer, By A. A. Schlesinger, President. As successors in Interest to the Newport Turpentine & Rosin Co. Incorporated." Affixed to this waiver was the corporate seal of The Newport Company. The paragraph with respect to its effective duration is the same as that quoted in connection with the third waiver in paragraph 48.

52. Four so-called income and profits-tax waivers were filed on behalf of The Newport Turpentine and Rosin Company of Florida. Each of these waivers was filed more than three years after that corporation had been legally dissolved.

The first waiver was transmitted to the respondent in a letter dated February 23, 1924, on the stationery of The Newport Company and signed "C. W. Westerman, Secretary." The waiver itself was undated but bore the stamp "Received Feb. 26, 1924." It was for the year 1918 and was signed "Newport Turpentine & Rosin Co. of Fla. Taxpayer, By H. J. Schlesinger, President." Affixed to this waiver was the corporate seal of The Newport Turpentine and Rosin Company of Florida. The paragraph with respect to its effective duration is the same as that quoted in connection with the first waiver in paragraph 50.

The second waiver was transmitted to the respondent in a letter dated December 1, 1924, on the stationery of The Newport Company and signed "NEWPORT MINING COMPANY By: J. E. Kupperian." The waiver itself was dated December 1, 1924, was for the years 1918 and 1919, and was signed "Newport Turpentine & Rosin Company of Florida, Taxpayer, By H. J. Schlesinger, President." It had the word "Seal" written on it with a circle around the word and a notation on the outside of the circle, "Seal Destroyed." The paragraph with respect to its effective duration is the same as that quoted in connection with the first waiver in paragraph 48.

The third waiver was transmitted to the respondent in a letter dated November 25, 1925, on the stationery of The Newport Company and signed "C. W. Westerman, Secretary." The waiver itself was dated November 20, 1925, was for the years 1918 and 1919 and was signed "Newport Turpentine and Rosin Company (Florida) Taxpayer, By A. A. Schlesinger, Vice-President." Affixed to this waiver was the corporate seal of The Newport Company. It also had the word "Seal" written on it with a circle around the word and a notation on the outside of the circle, "Original Seal Broken. The Newport Company by C. W. Westerman, Secretary." The waiver was to remain in effect until December 31, 1926.

The fourth waiver was transmitted to the respondent in a letter dated November 6, 1926, on the stationery of The Newport Company and signed "A. A. Schlesinger." The waiver itself was dated November 6, 1926, was for the years 1917 and 1918 and the 6-month period ended June 30, 1919, and was signed "The Newport Company, Taxpayer, by A. A. Schlesinger, President As successors in Interest to the Newport Turpentine & Rosin Company, Florida." Affixed to this waiver was the corporate seal of The Newport Company. The paragraph with respect to its effective duration is the same as that quoted in connection with the third waiver in paragraph 48.

53. Three so-called income and profits-tax waivers were filed on behalf of The Harvest Farms Company. The first waiver was transmitted to the respondent in a letter dated December 2, 1924, on the stationery of The Youngstown Sheet and Tube Company and signed "THE YOUNGSTOWN SHEET AND TUBE COMPANY, C. H. Rose, Auditor." The waiver itself was dated December 1, 1924, was for the years 1918 and 1919, and was signed "Harvest Farms Company, Taxpayer, By W. J. Morris, Treas." Affixed to this waiver was the corporate seal of The Harvest Farms Company. The paragraph with respect to its effective duration is the same as that quoted in connection with the first waiver in paragraph 48.

The second waiver was transmitted to the respondent in a letter dated November 23, 1925, on the stationery of The Youngstown Sheet and Tube Company and signed "THE YOUNGSTOWN SHEET AND TUBE COMPANY, J. H. Hall, Assistant Comptroller." The waiver itself was dated November 23, 1925, was for the years 1918 and 1919, and was signed "HARVEST FARMS COMPANY, Taxpayer, By W. E. Meub, Assistant Treasurer." Affixed to this waiver was the corporate seal of The Harvest Farms Company. The waiver was to remain in effect until December 31, 1926.

The third waiver was transmitted to the respondent in a letter dated November 5, 1926, on the stationery of The Youngstown Sheet and Tube Company and signed "THE YOUNGSTOWN SHEET AND TUBE COMPANY, W. N. McDonald, Comptroller." The waiver itself was dated November 2, 1926, was for the years 1917 and 1918 and the 6-month period ended June 30, 1919, and was signed "The Mayville Iron Company Successor in Interest to Harvest Farms Company, Taxpayer, By W. E. Meub, Secretary." Affixed to this waiver was the corporate seal of The Harvest Farms. The paragraph with respect to its effective duration is the same as that quoted in connection with the third waiver in paragraph 48.

54. Five so-called income and profits-tax waivers were filed on behalf of The Dunn Iron Mining Company.

The first waiver was dated February 15, 1924, was for the year 1918, and was signed "Dunn Iron Mining Company, Taxpayer, By W. J. Morris, Treas." Affixed to this waiver was the corporate seal of The Dunn Iron Mining Company. The paragraph with respect to its effective duration is the same as that quoted in connection with the first waiver in paragraph 50.

The second waiver was transmitted to the respondent in a letter dated December 2, 1924, on the stationery of The Youngstown Sheet and Tube Company and signed "THE YOUNGSTOWN SHEET AND TUBE COMPANY, C. H. Rose, Auditor." The waiver itself was dated December 1, 1924, was for the years 1918 and 1919, and was signed "Dunn Iron Mining Company, Taxpayer, By W. J. Morris, Treas." Affixed to this waiver was the corporate seal of The Dunn Iron Mining Company. The paragraph with respect to its effective duration is the same as that quoted in connection with the first waiver in paragraph 48.

The third waiver was transmitted to the respondent in a letter dated October 3, 1925, on the stationery of Price, Waterhouse and Company and signed "Price, Waterhouse & Co." The waiver itself was dated September 29, 1925, was for the year 1919, and was signed "Dunn Iron Mining Company, Taxpayer, By W. J. Morris, Treasurer." Affixed to this waiver was a corporate seal. The waiver was to remain in effect until December 31, 1926.

The fourth waiver was transmitted to the respondent in a letter dated November 23, 1925, on the stationery of The Youngstown Sheet and Tube Company and signed "THE YOUNGSTOWN SHEET AND TUBE COMPANY, J. H. Hall, Assistant Comptroller." The waiver itself was dated November 23, 1925, was for the years 1918 and 1919, and was signed "DUNN IRON MINING COMPANY, Taxpayer, By W. E. Meub, Assistant Treasurer." Affixed to this waiver was the corporate seal of The Dunn Iron Mining Company. The waiver was to remain in effect until December 31, 1926.

The fifth waiver was transmitted to the respondent in a letter dated November 5, 1926, on the stationery of The Youngstown Sheet and Tube Company and signed "THE YOUNGSTOWN SHEET AND TUBE COMPANY, W. N. McDonald, Comptroller." The waiver itself was dated November 2, 1926, was for the years 1917 and 1918 and the 6-month period ended June 30, 1919, and was signed "The Youngstown Sheet and Tube Company Successor in Interest to Dunn Iron Mining Company, Taxpayer, By W. E. Meub, Secretary." Affixed to this waiver was the corporate seal of The Youngstown Sheet and Tube Company. The paragraph with respect to its effective duration is the same as that quoted in connection with the third waiver in paragraph 48.

55. One so-called income and profits-tax waiver filed on behalf of The Steel and Tube Company of America. This waiver was transmitted to the respondent in a letter dated October 3, 1925, on the stationery of Price, Waterhouse and Company and signed "Price, Waterhouse & Co." The waiver itself was dated September 29, 1925, was for the years 1918 and 1919, and was signed "The Youngstown Sheet and Tube Company Successors in Interest to The Steel and Tube Company of America, Taxpayer, By W. J. Morris, Vice-president."

56. Each of the aforesaid waivers, with the one exception of the first waiver mentioned in paragraph 49, contained the following paragraph inserted after the signatures at the bottom of the waiver:

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, he seal, if any, of the corporation must be affixed.

57. All of the aforegoing so-called waivers were signed in accordance with requests received from the Bureau of Internal Revenue.

58. On or about April 14, 1920, The Newport Company filed with the Bureau of Internal Revenue an "Affiliated Corporations Questionnaire." Among other things this report stated in connection with The Newport Turpentine & Rosin Company, Inc., and The Newport Turpentine & Rosin Company of Florida that "These companies have been dissolved and the stock cancelled." It also reported "Company in process of dissolution - Stock cancelled" with respect to The Newport Mining Company, The Newport Chemical Works, Inc., The Newport Turpentine & Rosin Company, Inc., and The Newport Turpentine & Rosin Company of Florida.

59. On August 10, 1921, "E. H. BATSON, Deputy Commissioner by L. E. Rush, Acting Chief of Subdivision," addressed a letter to "The Newport Company," which is quoted in part as follows:

It is noted that on pages 10 and 11 of the questionnaire certain companies are referred to as being in process of dissolution and cancellation of stock, as follows:

The Newport Mining Company,

Newport Chemical Works, Inc., Maine

Newport Turpentine and Rosin Company, Inc.

Newport Turpentine and Rosin Company, of Florida.

* * *

You are requested to give the exact dates on which the respective charters of the above-named companies were surrendered to the State for cancellation.

60. On August 26, 1921, The Newport Company addressed a letter to the respondent, the contents of which are as follows:

In reply to your letter of August 10th we beg to enclose herewith the data called for in affidavit form. Should the matters which you had in mind when writing not be fully covered hereby, please advise us and we will supplement it as desired.

61. The affidavit referred to in the proceding paragraph reads in part as follows:

* * * that the dates upon which said companies were dissolved by decree of the appropriate court or by certificate issued by the appropriate administrative officer are as follows:

Newport Chemical Works, Inc. (Maine), March 1, 1929,

Newport Chemical Works, Inc. (Maine), March 1, 1920.

Newport Turpentine & Rosin Co., Inc., October 1, 1919,

Newport Turpentine & Rosin Co. of Fla., September 13, 1919.

That all of the aforesaid corporations were in process of dissolution from and after July 30, 1919, the interval between said date and the actual date of the decree or certificate aforesaid being necessary to accomplish transfers of property and legal formalities in connection with the dissolution * * *.

62. On page 3 of the letter dated June 17, 1922 (referred to in paragraph 46 above), the respondent notified The Newport Company that The Newport Mining Company was not affiliated with any company "from July 1, 1919, to date of dissolution March 1, 1920," and, that it should, therefore, file a separate return for that year. (Italics supplied.)

63. On July 27, 1922, The Newport Company addressed a letter to the respondent in reply to the latter's letter dated June 17, 1922 (referred to in paragraph 62 above), the second paragraph of which reads as follows:

Newport Chemical Works, Inc. (Maine) to date of dissolution, March 1st, 1920, has not been included in the return for 1920 for the reason that this Company transacted no business whatsoever during the year. We have, however, filed a separate return and forwarded same to the Collector of Internal Revenue, Milwaukee, under date of March 8th, 1921, and mentioned at that time that the Company did not operate during the year and no net income was earned.

64. On July 22, 1920, the respondent was notified in an affiliated corporations questionnaire of The Steel and Tube Company of America for the year 1919 that The Northwestern Iron Company was dissolved during the year 1919 and that its assets and business transactions were included with those of The Steel and Tube Company of America.

65. On March 8, 1921, the Newport Mining Company addressed a letter to the collector of internal revenue, Milwaukee, Wisconsin, the contents of which are as follows:

We are enclosing herewith form No. 1120 Corporation Income and Profits Tax Returns for the year 1920 for The Newport Mining Company.

You will note that the Company did not operate during the year and hence no net income earned. You will further note that the Company's affairs have been wound up and the Company legally dissolved.

The return was stamped as being received in the collector's office on March 9, 1921, and written across the face of the return were these words in red ink: "Not active. Dissolved Mar. 1, 1920. Transacted no business whatsoever during the year." Similar letters dated March 8, 1921, were mailed to the collector at Milwaukee by The Newport Chemical Works, Inc., The Newport Turpentine & Rosin Co., Inc., The Newport Turpentine & Rosin Company of Florida, and The Northwestern Iron Company. Similar notices were made in red ink on the returns of The Newport Chemical Works, Inc., showing it dissolved on March 1, 1920; The Newport Turpentine & Rosin Company, Inc., showing it dissolved on October 1, 1919; The Newport Turpentine & Rosin Company of Florida, showing it dissolved on September 13, 1919; and The Northwestern Iron Company, showing it dissolved on October 21, 1919.

66. On or about December 12, 1919, a claim for abatement of taxes erroneously or illegally assessed was filed by "The Newport Mining Co., and subsidiary and affiliated Companies" for the year 1918 and was signed "THE NEWPORT MINING CO. by H. H. Springford, Secretary." On or about January 30, 1920, a claim for refund of income and profits and war taxes for the year 1918 was filed by "THE NEWPORT MINING COMPANY" and signed "THE NEWPORT MINING COMPANY By Edward G. Wilmer, Vice-Pres." On or about March 16, 1922, a claim for refund of taxes illegally collected for the year 1918 was filed with the collector of internal revenue in Wisconsin for "The Newport Co. for itself and The Steel & Tube Co. of America - Successors to The Newport Co." This claim was signed "The Newport Company by A. A. Schlesinger, President - Attest Frederick R. Wahl, Secretary." On or about March 25, 1923, "The Newport Co. and The Steel & Tube Co. of America - Successors to The Newport Mining Co. and Subsidiary and Affiliated Companies" filed with the collector of internal revenue for the district of Wisconsin a claim for refund of taxes illegally collected for the calendar year 1918. A "rider" was attached to this claim which, among other things, stated that the said claim was based on an additional deduction for amortization of war facilities as follows:

Name of company	1918	1919
The Newport Chemical Works, Inc	$857,104.15	None.
Northwestern Iron Company	582,447.33	$111,383.21
The Newport Mining Company	172,726.25	24,472.13
4 corporations (not here material)	1,646,228.94	57,651.40
Total amortization claimed	3,258,506.67	193,506.74

On or about March 31, 1927, claims for refund for the calendar year 1919 were filed by (1) "The Newport Co., For Itself, and/or Subsidiary and/or Affiliated Companies"; (2) "The Steel & Tube Co. of America as successor - The Newport Company as successor - and Newport Mining Company for itself"; (3) "The Newport Company as successor and Newport Chemical Works, Inc. Me. for itself"; (4) "The Newport Company, as successor and Newport Turpentine & Rosin Co., (Ala.) for itself," and (5) "The Newport Company as successor and Newport Turpentine & Rosin Company, Fla. for itself."

OPINION.

LOVE: The only question in these proceedings to be decided at this time is that involving the statute of limitations. The notices which form the bases for the petitions filed herein propose to assess certain liabilities against petitioners as transferees under the provisions of section 280 of the Revenue Act of 1926. Subdivision (b) of this section provides in part as follows:

The period of limitation for assessment of any such liability of a transferee or fiduciary shall be as follows:

(1) Within one year after the expiration of the period of limitation for assessment against the taxpayer * * *.

The period of limitation for assessment against each taxpayer involved in these proceedings is within five years after the return was filed (sec. 250(d), 1918 and 1921 Acts; sec. 277(a)(2), 1924 Act; sec. 277(a)(3), 1926 Act) unless both the Commissioner and the taxpayer should consent in writing to a later assessment (sec. 250(d), 1921 Act; sec. 278(c) 1924 and 1926 Acts), in which event the tax could be assessed at any time prior to the expiration of the period agreed upon, unless, further, the Commissioner should post a notice of deficiency by registered mail either within the five-year period or the extended period from which an appeal is filed with the Board, in which event "The period within which an assessment is required to be made * * * shall be extended * * * by the number of days between the date of the mailing of such notice and the date of the final decision by the Board." Sec. 277(b), 1924 Act. See also sections 274(a) and 277(b) of the Revenue Act of 1926. If, however, the period of limitation for assessment against the taxpayer expired before the passage of the Revenue Act of 1926, then section 280(b)(1), supra, is not applicable. Caroline J. Shaw, Executrix,21 B.T.A. 400">21 B.T.A. 400; and Barron-Anderson Co.,17 B.T.A. 686">17 B.T.A. 686, cited therein.

The petitioners contend that, with but three exceptions mentioned below, all of the "consents in writing" hereinafter referred to as "waivers" were filed with the respondent at his request after the particular corporation taxpayer for which they were filed had been dissolved, which fact was known to the respondent, and after the time provided for by the laws of the corporation's domicile for winding up its affairs had expired; that waivers filed under such circumstances could have no legal effect whatever; that the notices had been mailed to petitioners more than six years after the return for each of the said taxpayers had been filed; and that the period for making any assessment against either the taxpayer or the alleged transferee under the above cited statutes had, therefore, expired at the time the said notices were mailed.

The three exceptions referred to in the preceding paragraph pertain to (1) The Dunn Iron Mining Company, (2) The Harvest Farms Company, and (3) The Newport Turpentine & Rosin Company, Inc. (Alabama). Petitioners concede that since The Dunn Iron Mining Company was not dissolved, the waivers given on behalf of that corporation were valid, and that, therefore, at the time the said deficiency notices were mailed the period for making any assessment against that corporation had not expired. The situation is the same with respect to The Harvest Farms Company although petitioners do not expressly concede it in their briefs. The exception as to The Newport Turpentine & Rosin Company, Inc., is found in paragraph 51 of our findings, wherein we find that the first of four waivers was filed after that corporation had been legally dissolved but before the five-year period for winding up its affairs under the laws of Alabama had expired. This exception, as will appear later, becomes immaterial.

The respondent contends that the notices, which form the bases for the petitions filed herein were mailed within the period of limitations provided by the above cited statutes, and in support thereof relies upon the following thirteen points:

(1) That statutes of limitations should be strictly construed, and all doubts, if any, should be resolved in favor of the Government;

(2) That the effect of the various successorships under the several contracts and agreements should be determined according to the rules of Federal equity jurisprudence, and that under such rules there resulted from the transactions aforesaid, with respect to the powers, duties, liabilities, etc., of petitioners, and their officers and agents, "a merger or successorship in interest, rather than the status of an assignee of the rights, privileges, and interests of the former companies";

(3) That by reason of the said mergers and/or successorships, petitioners, although proceeded against as transferees, are, nevertheless, "taxpayers" as that term is defined in section 1 of the Revenue Acts of 1918 and 1921, and, therefore, all waivers signed by either or both petitionners as successors in interest are valid;

(4) That no special form of waiver is required under the statute and that a waiver signed by either or both petitioners as "Successor in Interest," but executed in the name of the dissolved corporation would be sufficient;

(5) That the dissolution proceedings of the several corporations in the several States were but mere formalities in the perfection of the said mergers and/or successorships in interest, and that since the predecessor companies had been divested of all their properties they were no longer in any position to respond and petitioners were the only entities from which any unpaid taxes could have been collected;

(6) That statutes of the state of origin and the general rules applicable to dissolved corporations in the respective states of origin can not be held to restrict the rights given to creditors under Wisconsin statutes as to foreign corporations which had been dissolved while doing business in Wisconsin (not applicable to Docket No. 28149);

(7) That foreign corporations doing business in Wisconsin which were legally dissolved in the state of their incorporation, nevertheless, continued as corporations de facto in Wisconsin and that their business was thereafter operaed in unbroken sequence by their successors in interest (Not applicable to Docket No. 28149);

(8) That even if point (7) is not true, petitioners, through their officers and agents, having been responsible for and party privy to the execution of the waivers executed for each of their predecessor companies in their respective corporate names, and under their respective corporate seals, for the purpose of obtaining further consideration of their protests and claims by the respondent, for their benefit, may not now be heard to say that the waivers given as aforesaid were executed without authority;

(9) That petitioners are bound by the waivers given under the law of implied agency and implied warranty of the authority of those who executed the respective waivers at petitioners' instance and under their direction, "in the absence of a showing that it (petitioners) made a full and complete disclosure - of all the material facts and circumstances" which might affect their validity;

(10) That the taxes imposed upon all of the corporations herein involved except The Dunn Iron Mining Company may be assessed and collected at any time under the provisions of section 278(b) of the Revenue Act of 1926;

(11) That the returns mentioned in our findings 42 to 45, inclusive, were not "the returns" required by law, and were not, therefore, sufficient to start the running of the statute of limitations;

(12) That a transferee of a transferee is liable for taxes imposed upon the transferor which had accrued when the first transfer was made; and

(13) That an assignee of the rights of a transferee, which receives a conveyance of property as the nominee of the transferee under the contract of purchase, is not itself a transferee.

In regard to the first point relied upon the respondent, it seems only necessary to quote the language of the Supreme Court in the case of United States v. Updike,281 U.S. 489">281 U.S. 489, as follows:

* * * In any event, we think this is the fair interpretation of the clause, and the one which must be accepted, especially in view of the rule which requires taxing acts, including provisions of limitation embodied therein, to be construed liberally in favor of the taxpayer. Bowers v. N.Y. & Albany Co.,273 U.S. 346">273 U.S. 346, 349, 47 S. Ct. 389">47 S.Ct. 389, 71 L. Ed. 676">71 L.Ed. 676.

The above-mentioned points (2) to (9) inclusive, are substantially the same as were argued by the respondent in a prior proceeding entitled The Newport Company,22 B.T.A. 833">22 B.T.A. 833, which dealt with two of the corporations herein involved, except for an earlier year. The same counsel appear in both proceedings. In the earlier proceeding the respondent proposed to assess against The Newport Company as transferee a liability for a deficiency in income and excess-profits taxes of The Newport Chemical Works, Inc., for the year 1917. The petitioner resisted on the ground that the statute of limitations for making any such assessment had expired and advanced the same arguments in support thereof as have been made in the instant proceedings.

A brief summary of the salient facts in the earlier proceeding will show the similarity of the questions involved there and here. All the general facts found in the instant proceedings pertaining to The Newport Chemical Works, Inc., and The Newport Company relating to such matters as 1919 reorganization transactions, dissolutions, notices to respondent of dissolutions, etc., are the same in both cases.

On April 1, 1918, The Newport Chemical Works, Inc., originally filed separate income and excess-profits-tax returns for the year 1917. The respondent later determined that it was affiliated with The Newport Mining Company for that year for excess-profits-tax purposes only. Six waivers were filed on behalf of The Newport Chemical Works, Inc., for 1917, the last five of which were filed after that corporation had been legally dissolved for more than three years. The first waiver was executed on December 15, 1920, was signed "Newport Chemical Works, Incorporated by Edw. G. Wilmer, Vice-President," and expired, in accordance with respondent's Mimeograph 3085, on April 1, 1924. The second waiver was executed on December 11, 1923, on behalf of "The Newport Mining Company and affiliated companies" and was signed "The Newport Mining Company Taxpayer By H. J. Schlesinger Vice-President." The next three waivers were executed on or about February 26, 1924, December 23, 1924, and January 12, 1926, respectively, and were all signed "Newport Chemical Works, Inc., Taxpayer by H. J. Schlesinger Vice-President." The sixth waiver was executed on November 6, 1926, on behalf of the "Newport Chemical Works, a taxpayer of Milwaukee, Wisconsin," and was signed "The Newport Company Taxpayer By A. A. Schlesinger, President As successors in Interest to the Newport Chemical Works." The transferee liability notice was mailed to The Newport Company on March 14, 1927.

We decided for the petitioner in the earlier proceeding and held, among other things, that he last five waivers were invalid, as far as The Newport Chemical Works, Inc., was concerned, because executed more than three years after that corporation had been legally dissolved and had ceased to exist for all purposes, and that the statute of limitations for assessing any tax against eiher that corporation or The Newport Company expired on April 1, 1924. We know of no valid reason why our decision in the instant proceedings, as far as respondent's points (2) to (9), inclusive, are concerned, should not be the same as it was in the earlier one, and we, therefore, pass on to the consideration of the remaining four points. See alsoBarron-Anderson Co., supra; petition for review dismissed September 16, 1930; Farmers & Planters Tobacco Warehouse Co.,22 B.T.A. 1331">22 B.T.A. 1331; and Continental Oil Co.,23 B.T.A. 311">23 B.T.A. 311, 327.

The tenth point relied upon by the respondent is that when he disallowed the deduction for amortization of war facilities claimed by certain of the corporations on their original returns, that part of the deficiencies which result from such disallowance is "attributable to a charge in a deduction tentatively allowed under * * * paragraph (8) of subdivision (a) of section 234, of the Revenue Act of 1918" and, under section 278(b) of the Revenue Act of 1926 just quoted, "may be assessed * * * at any time." He argues that the acceptance of the returns and the original assessments thereon and the acceptance of the payment of the tax as shown by the returns was a "tentative" allowance of the deductions there claimed within the meaning of the words "tentatively allowed" as used in section 278(b), supra. We have decided this contention adversely to the respondent in the cases of W. G. Duncan Coal Co.,13 B.T.A. 672">13 B.T.A. 672; and Ohio Falls Dye & Finishing Works,16 B.T.A. 1038">16 B.T.A. 1038; affirmed by the Sixth Circuit at 50 Fed.(2d) 660.

The eleventh point relied upon by the respondent is that the returns mentioned in our findings at paragraphs 42 to 45, inclusive, were not such returns as would start the statute of limitations running as to any of the transferors involved herein for the 6-month period ending June 30, 1919. As shown in our preliminary statement, the only transferors against whom the respondent has determined deficiencies for his period are The Northwestern Iron Company, The Dunn Iron Mining Company, and The Newport Chemical Works, Inc. Since petitioners concede that the statute has not run (on account of valid waivers being given) as to The Dunn Iron Mining Company, we need only consider this point as it affects the other two transferors. The facts pertaining to The Northwestern Iron Company on this point are set out in full in our findings at paragraphs 44 to 47, inclusive, and those pertaining to The Newport Chemical Works, Inc., at paragraphs 42, 43, 46 and 47.

It is the respondent's contention that since neither of these transferors was affiliated with either The Steel and Tube Company of America or The Newport Company for the first six months of 1919, the inclusion by them of their income and invested capital in the consolidated returns of the latter was erroneous, and that the statute of limitations for making any assessment against such transferors could not commence to run until the return mentioned in paragraph 47 was filed. This contention has been presented before this Board and the Circuit Courts many times and it is now well established that where several corporations in good faith file a consolidated return in which the separate gross income and deductions of each corporation are reported, the filing of such return is such a substantial compliance with the statute relating to the filing of returns as will start the statute of limitations running with respect to each corporation included therein, although it later be determined that one or more of such corporations were not affiliated with the other or others. F. A. Hall Co., Inc.,3 B.T.A. 1172">3 B.T.A. 1172; Matteawan Manufacturing Co.,4 B.T.A. 953">4 B.T.A. 953; Kellog Commission Co.,6 B.T.A. 771">6 B.T.A. 771; Fibre Container Co.,9 B.T.A. 575">9 B.T.A. 575; Stetson & Ellison,11 B.T.A. 397">11 B.T.A. 397, affd., 43 Fed.(2d) 553; Matteawan Manufacturing Co.,14 B.T.A. 789">14 B.T.A. 789; Converse Cooperage Co.,17 B.T.A. 1285">17 B.T.A. 1285; and Continental Oil Co., supra.If, however, the gross income and deductions of each corporation are not separately disclosed in the consolidated return, the Fifth Circuit has ruled otherwise, in United States v. National Tank & Export Co., 45 Fed.(2d) 1005; certiorari denied, 283 U.S. 839">283 U.S. 839; and Lucas v. Colmer-Green Lumber Co., 49 Fed.(2d) 234. Cf. also Paso Robles Mercantile Co. v. Commissioner, 33 Fed.(2d) 653; Myles Salt Co. v. Commissioner, 49 Fed.(2d) 232; Goldman v. Commissioner, 51 Fed.(2d) 427; and Valentine-Clark Co. v. Commissioner, 52 Fed.(2d) 346.

The respondent, in support of his contention that the statute did not commence to run until the return mentioned in paragraph 47 was filed, has cited Pilliod Lumber Co.,281 U.S. 245">281 U.S. 245; Norwich Woolen Mills Corp.,18 B.T.A. 303">18 B.T.A. 303; Sweets Co. of America,12 B.T.A. 1285">12 B.T.A. 1285; Green River Distilling Co.,16 B.T.A. 395">16 B.T.A. 395; Fidelity National Bank & Trust Co. v. Commissioner, 39 Fed.(2d) 58; and Lucas v. St. Louis National Baseball Club, 42 Fed.(2d) 984.

The question in the first case just cited was whether the filing of an unsigned and unsworn return would start the statute running where section 239 of the Revenue Act of 1918 specifically provided that "The return shall be sworn to by the president, vice president, or other principal officer and by the treasurer or assistant treasurer." The Supreme Court held in the negative. But this question is not involved in the instant proceedings, as all the returns in question met this requirement of the statute. The second case cited by the respondent is not in point, for the reason that the petitioner there was contending that a return filed by a corporation for the 9-month period ending December 31, 1920, should, nevertheless, be considered a return for 12 months ending March 31, 1921, in order that the statute might start to run from the date of the filing of such return as to income earned between January 1, 1921, and March 7, 1921, when the corporation was dissolved. The other four cases cited by the respondent do not involve the question of whether the return filed in those cases was such a return as would start the statute running, and, therefore, need not be further considered.

As stated in our findings, the gross income and deductions of The Northwestern Iron Company and The Newport Chemical Works, Inc., were fully reported in considerable detail in the consolidated returns of The Steel and Tube Company of America and The Newport Company, respectively, and, in view of what we have said above, we hold that the statute of limitations for making any assessment against such transferors started to run when the consolidated returns mentioned in paragraphs 42 to 45, inclusive, were filed.

The last two points relied upon by the respondent concern principally the determination whether The Youngstown Sheet and Tube Company or The Mayville Iron Company is the final transferee of the assets of The Northwestern Iron Company. As recited in our preliminary statement, the questions to be decided at this time were, by motion duly made and granted, limited to those arising under the statute of limitations. In view of our holding on the question of the statute of limitations respecting the deficiencies determined against The Northwestern Iron Company, we do not deem it necessary to further discuss these points even if they were, at this time, properly before us.

Applying the principles discussed above to the essential facts set out in our findings, we hold that the assessment of any taxes against the several transferors was or was not barred by the statute of limitations on the respective dates that the transferee notices were mailed to petitioners as set forth in the schedule below:

(Table omitted)

There is no evidence that any of the deficiencies shown in column (3) above were ever assessed against any of the said transferors, and since, as shown in column (10) above, the period within which an assessment of any taxes against any of the said transferors (except The Dunn Iron Mining Company and The Harvest Farms Company) expired prior to the passage of the Revenue Act of 1926, the assessment and collection of the proposed liabilities for such taxes against petitioners as transferees are also barred. Caroline J. Shaw, Executrix, supra.

The period within which an assessment could be made against The Harvest Farms Company did not expire until after the passage of the Revenue Act of 1926, and, therefore, the extra year provided for in section 280(b)(1), supra, of the Revenue Act of 1926 is applicable. Louis Costanzo,16 B.T.A. 1294">16 B.T.A. 1294; J. A. Kemp,20 B.T.A. 875">20 B.T.A. 875. The respondent, therefore, had until December 31, 1927, to notify a transferee of its liability for unpaid taxes of this corporation. Petitioners were notified on December 29, 1927, and, therefore, if they are liable as transferees, the notices to them were timely.

We, therefore, hold that the assessment and collection of all of the proposed liabilities against petitioners are barred by the statute of limitations except those relating to The Dunn Iron Mining Company (which petitioners have conceded are not barred provided they are liable as transferees) and The Harvest Farms Company.

Reviewed by the Board.

Further proceedings may be had upon the remaining issues contained in the pleadings.

SMITH

SMITH, dissenting: In holding that our decision in The Newport Co.,22 B.T.A. 833">22 B.T.A. 833, controlled the issue presented by these proceedings, I believe that the prevailing opinion ignores certain salient facts involved herein.

I do not agree with the holding that the petitioners' liabilities were barred by the statute of limitations. The facts set forth in paragraph nine of our findings show that the transferees assumed all liabilities of the transferors. Thereafter, the parties concerned treated the tax questions as matters to be settled by the transferees (see p. 11, et seq ). The transferees became, by succession, the "taxpayers." See Routzahn v. Tyroler, 36 Fed.(2d) 208. In United States v. Updike,281 U.S. 489">281 U.S. 489; 50 Sup.Ct. 367, 369, the Supreme Court said:

* * * Indeed, when used to connote payment of a tax, it puts no undue strain upon the word "taxpayer" to bring within its meaning that person whose property, being impressed with a trust to that end, is subjected to the burden. Certainly it would be hard to convince such a person that he had not paid a tax.

In this view of the case, the transferees as taxpayers executed waivers which, under Stange v. United States,282 U.S. 270">282 U.S. 270; 51 Sup.Ct. 145, I consider sufficient to prevent the bar of the statute of limitations. In this case, we may disregard those waivers executed in the name of the dissolved corporations, and consider only those waivers executed by either petitioner as "successor in interest." The parties to these waivers benefited by the determinations and deliberations thereunder, and, without advancing any thought as to an equitable estoppel (but see Lucas v. Hunt, 45 Fed.(2d) 781), I believe that they were valid waivers. In the Stange case, where as here the tax liability was barred prior to the execution of the waivers, the Supreme Court said:

* * * That the parties at the time may have believed that collection was possible independent of any waiver, does not make less effective the instrument given for the purpose of tolling the limitation on the ultimate determination and collection of the tax. It must be assumed that an effective and not a futile act was intended.