*2469 Neither the acceptance of a return and the assessment of a tax thereon, nor a letter from the respondent to the petitioner indicating the allowance of an amortization deduction and requesting petitioner's acquiescence therein for purpose of determining net income as a basis for considering special assessment, constitute a "tentative allowance" of the amortization deduction within the meaning of section 278(b), Act of 1926, which makes the ordinary statute of limitations inoperative in cases of such tentative allowance.
*1038 Petitioner in this proceeding contests a determination of a deficiency in income taxes for the calendar year 1918 in the amount of $11,031.29, due to the disallowance of a deduction claimed for amortization of war facilities. Petitioner relies on the statute of limitations, which respondent asserts is inoperative as either the acceptance of the return or a subsequent determination of the respondent constituted a tentative allowance of the deduction claimed. The facts are stipulated.
FINDINGS OF FACT.
The petitioner is a*2470 corporation with its principal office at 717 East Madison Street, Louisville, Ky.
The taxes in controversy are income and excess-profits taxes for the calendar year 1918 in the amount of $11,031.09.
*1039 "Exhibit A," attached to the petition, is a true copy of the deficiency letter mailed to the petitioner on August 5, 1926.
The petition was filed on October 4, 1926.
On or about June 14, 1919, the petitioner filed with the proper collector of internal revenue its income and profits-tax return for the calendar year 1918, showing thereon a net income of $238,010.38, an invested capital of $259,240.03, and a total income and profits tax of $132,948.57, which amount was duly assessed.
In computing the aforesaid net income of $238,010.38, the petitioner claimed a deduction from its gross income of $28,539.10 for amortization of such part of the cost of certain facilities acquired by it on or after April 6, 1917, for the production of articles contributing to the prosecution of the World War. Said deduction for amortization was supported by detailed schedules attached to the return.
That subsequent to the filing of the aforesaid return, and prior to October 30, 1921, Engineers*2471 B. L. Wheeler and W. F. R. Griffith, representing the respondent, visited the petitioner's plant at Louisville, Ky., and made an investigation with respect to the amortization claimed by the petitioner on its return as aforesaid.
On October 30, 1921, the said engineers filed a report recommending allowance of petitioner's claim on account of amortization to the extent of $11,117.90 and disallowance of said claim to the extent of $17,421.20. Said report was approved by the "Chief of Engineers" and the "Chief of Section" of the Amortization Section of the Bureau of Internal Revenue.
On or about December 5, 1921, Internal Revenue Agent Grab made an examination of the petitioner's books and records for the calendar years 1917 to 1920, inclusive, and in his report to the respondent recommended the disallowance of the amortization item on $17,421.20 referred to in the last preceding paragraph.
On or about October 3, 1922, petitioner requested a determination of its amortization claim as originally submitted which request was supported by appropriate detailed schedules.
On October 24, 1922, a letter was addressed to the petitioner acknowledging receipt of the said schedules submitted*2472 in support of its request for the redetermination of its claim for amortization of its war facilities and requesting certain additional information in respect thereto. This letter was signed "E. H. Batson, by S. T. De La Mater, Chief of Section." The additional information was furnished to the respondent on November 6, 1922. Subsequently thereto Engineer M. F. Kahn, representing the respondent, visited the petitioner's plant at Louisville, Ky., and made an investigation with respect to the amortization claimed by the petitioner on its said *1040 return for the year 1918 and on or about May 1, 1923, the said engineer, in a report approved by the Reviewing Engineer of the Amortization Section and the Chief of the Amortization Section of the Bureau, recommended the allowance of an amortization deduction to petitioner for the calendar year 1918 in the amount of $23,079.10 and recommended disallowance of amortization claimed for said year in the amount of $5,460.
At the time it filed its income and profits-tax return for the calendar year 1918 the petitioner made application for the assessment of its profits tax for that year under the provisions of section 327 and 328 of the*2473 Revenue Act of 1918, and on November 19, 1923, a letter signed "J. G. Bright, Deputy Commissioner, by F. R. Leary, Chief of Section," was addressed to the petitioner, which stated that before consideration could be given to the petitioner's application for special assessment there must be a final determination of its net income and that it was, therefore, necessary for the petitioner to advise the respondent within 30 days of its acquiescence in the determination of its net income as disclosed in the schedules attached to the said letter. In computing the petitioner's net income for the calendar year 1918, as set forth in the said letter, there was allowed as a deduction from the petitioner's gross income the sum of $23,079.10 on account of amortization under section 234(a)(8) of the Revenue Act of 1918.
On December 6, 1923, the petitioner acknowledged receipt of the respondent's letter of November 19, 1923, and stated that it acquiesced in the determination of its net income as set forth therein provided it be allowed the depreciation deduction of $6,699.10 referred to above. Thereafter, at a conference held on January 9, 1924, in the Income Tax Unit, before Messrs. Deland and*2474 Cavenaugh, conferee and auditor, it was agreed to allow the petitioner the said depreciation deduction of $6,699.10; whereupon the petitioner, on or about January 11, 1924, acquiesced by letter to the respondent's determination of its net income for the calendar year 1918, as stated in said Exhibit B.
On or about April 13, 1926, the petitioner received from the Bureau a 30-day letter proposing to assess against the petitioner for the calendar year 1918 an alleged deficiency of $11,031.09. The respondent then issued the 60-day letter of August 5, 1926, which forms the basis of this appeal.
OPINION.
SIEFKIN: More than five years elapsed between the filing of return on or about June 14, 1919, and the mailing of the deficiency letter on August 5, 1926. Respondent asserts, however, that the statute of limitations does not bar the deficiency, as the acceptance of the *1041 return and the assessment of a tax thereon constituted a tentative allowance of the claimed amortization deduction making the statute of limitations inoperative under section 278(b) of the Revenue Act of 1926, which reads as follows:
Any deficiency attributable to a change in a deduction tentatively*2475 allowed under paragraph (9) of subdivision (a) of section 214, or paragraph (8) of subdivision (a) of section 234 of the Revenue Act of 1918 or the Revenue Act of 1921, may be assessed, or a proceeding in court for the collection of such tax may be begun without assessment, at any time.
We have ruled adversely on the contention made by the respondent in . See also .
There remains respondent's further contention that in the letter of November 19, 1923, there was a tentative amortization allowance of $23,079.10; that of this amount so allowed $7,927.25 was disallowed in the 30-day letter of April 13, 1926, which action was reiterated in the deficiency letter of August 5, 1926; and that so much of the deficiency as is due to increasing the net income by this amount of $7,927.25 can be assessed at any time.
The letter of November 19, 1923, notified petitioner that a final determination of its net income (which by clear inference, as well as the expressed request for acquiescence, included final determination of the amortization deduction claim) must be made before consideration could*2476 be given the claim for special assessment. There is no suggestion that the amortization allowance granted therein was "tentative" (which word, according to Webster's New International Dictionary, is derived from the Latin word "tentare" - to try, and is defined as "of, pertaining to, or based on, a trial or trials; experimental; as, a tentative theory). Prior to such letter petitioner had requested a determination of its amortization claim, had furnished required information, and one of respondent's engineers had investigated and made a report on which the allowance was based. Nor do we believe that petitioner's answering letter in which he acquiesced in the determination made as a basis for considering special assessment (but reserving petitioner's rights under the law and regulations) indicates the allowance to be tentative rather than the final determination it purports to be.
Of course such determination was not final in the sense that it precluded the respondent from reopening the case and adjusting or changing the allowance at any time within the prescribed statutory period. Section 278(b) of the Revenue Act of 1926 provides an exception to the general limitation provision. *2477 Obviously, it was not intended to lift the statutory bar from all cases involving amortization deductions. Had Congress so intended, it seems clear that the words "tentatively allowed" would never have been used. Accordingly, *1042 we must not only treat section 278(b) as an exception, but we must attach due weight to the word "tentative." There is nothing in the record to distinguish this case from the ordinary one in which the respondent grants a deduction and later sees fit to reduce the amount thereof.
Reviewed by the Board.
Judgment will be entered for the petitioner.