*3515 1. Where a taxpayer has died, the Commissioner has the right to determine a deficiency against his personal representative.
2. The assessment and collection of the tax is not barred by the statute of limitations.
*519 This proceeding involves deficiencies in income tax for the calendar years 1920 and 1921, in the respective amounts of $8,822.68 and $266.13. Petitioner asserts that respondent erred in excluding a deduction from gross income of a loss arising from a sale by petitioner's decedent of his interest in a partnership; that respondent was without legal authority to determine a deficiency against her as executrix; and that the overassessment and collection of the deficiencies are barred by the statute of limitations.
*520 FINDINGS OF FACT.
Petitioner is a citizen of the State of New York, residing at Union-ville, Orange County, in said State, which is within the Fourteenth Collection District of New York.
Roland C. Miles in 1920 sold his interest in the partnership of H. G. Miles & Co., a firm engaged*3516 in the general commission and produce business at 288-290 Washington Street, New York City. Said Miles was a 50 per cent partner in the profits of said partnership and had been actively engaged in the business since it was organized in January, 1908. The sale price was $60,047.41. The books of H. G. Miles & Co. are not in the possession of petitioner but in possession of the company.
Roland C. Miles filed his income-tax returns for the calendar years 1920 and 1921 with the collector of internal revenue for the second district of New York at New York City, his place of business being within said second district. The return for 1920 was filed April 13, 1921, and the return for 1921 was filed April 22, 1922.
Roland C. Miles died July 14, 1925, and his last will and testament dated September 4, 1923, was duly admitted to probate by the Orange County Surrogate's Court of the State of New York on August 10, 1925. On said date of August 10, 1925, Gertrude H. Miles, who is the widow of testator, was duly issued letters testamentary as executrix and thereupon qualified as such, subscribed to the prescribed oath of office and entered upon her statutory duties as such executrix. Administration*3517 of said estate was still pending at the date of the filing of an amended petition herein, to wit, January 11, 1928.
On April 68 1926, respondent addressed and mailed to petitioner a deficiency letter which reads:
TREASURY DEPARTMENT,
Washington, Apr. 6, 1926.
IT:PA:2:60 D.
RMH:201
Mrs. GERTRUDE H. MILES,
Executrix, Estate of Roland C. Miles,Unionville, New York.
MADAM: The determination of your income tax liability for the taxable years 1920 and 1921, as set forth in office letter of November 23, 1925, disclosed a deficiency in tax amounting to $9,088.81, for these years.
In accordance with the provisions of Section 274 of the Revenue Act of 1926, you are allowed 60 days from the date of mailing of this letter within which to file a petition for the redetermination of this deficiency. Any such petition must be addressed to the United States Board of Tax Appeals, Earle Building, Washington, D.C., and must be mailed in time to reach the Board within the 60-day period, not counting Sunday as the sixtieth day.
Where a taxpayer has been given an opportunity to file a petition with the United States Board of Tax Appeals and has not done so within the*3518 60 days prescribed and an assessment has been made, or where a taxpayer has filed *521 a petition and an assessment in accordance with the final decision on such petition has been made, the unpaid amount of the assessment must be paid upon notice and demand from the Collector of Internal Revenue. No claim for abatement can be entertained.
If you acquiesce in this determination and do not desire to file a petition with the United States Board of Tax Appeals, you are requested to execute a waiver of your right to file a petition with the United States Board of Tax Appeals on the enclosed Form A, and forward it to the Commissioner of Internal Revenue, Washington, D.C., for the attention of IT:PA:2:60D: RMH:201. In the event that you acquiesce in a part of the determination, the waiver should be executed with respect to the items to which you agree.
Respectfully,
D. H. BLAIR,Commissioner.
By C. R. NASH,
Assistant to the Commissioner.
Petitioner filed her petition with the Board on June 5, 1926. The said proposed additional tax has never been assessed against Roland C. Miles either before or after his death or against petitioner. No suit or proceeding*3519 in any court has been begun by respondent for the collection of said additional tax, nor has a claim therefor ever been filed or submitted to petitioner as executrix of the estate of Roland C. Miles, deceased.
OPINION.
MILLIKEN: This proceeding came on for hearing May 21, 1928, and counsel for petitioner has requested an immediate decision.
With respect to the first issue, petitioner has introduced two witnesses, herself and a public accountant, neither of whom had first hand information relative to the facts concerning which they attempted to testify. Petitioner knew nothing of the contract of sale made by her late husband to his brother, except what her husband had told her. She had never spoken to the vendee on the subject. She was not permitted under the hearsay rule to testify as to her late husband's statements to her. Both petitioner and the public accountant attempted to testify as to the contents of the books of the partnership, she from memory and the accountant from written memoranda which he testified he had taken from the books. Neither ever had custody of the books nor had participated in keeping them. Whether the books actually reflected the accounts and*3520 financial condition of the firm was not brought out. For this reason and for the further reason that it appeared that the books were in existence and could have been produced at the hearing, all such testimony was excluded with the result that there is no evidence which sustains petitioner's contentions that the deficiency was not properly computed. *522 Petitioner has made no proper efforts to bring the books before us or to procure as a witness the brother of the decedent, now living, and who purchased the partnership interests of decedent.
Petitioner's counsel insisted at the hearing that respondent determined the deficiency under section 280 of the Revenue Act of 1926 and that that section is unconstitutional. There is nothing in the record which indicates that respondent proceeded under section 280. We have not been favored by a brief from counsel for petitioner but are under the impression that he relies on . Without passing on the merits of that decision, it is sufficient to point out that it is apparent that petitioner is not a transferee, such as was involved in that case. She is the*3521 personal representative of the deceased taxpayer and as such she stands in his shoes. She represents him in the settlement of his estate; in the collection of all that is due it and in the payment of all his obligations. As such, it was her duty not only to return the income of the estate but also all the income of her testator which he had not returned. Section 225 of the Revenue Acts of 1918, 1919, 1921, 1924, and 1926. Cf. . She has the right to file in behalf of the estate waivers extending the period of limitation. . She has the right to recover any overpayments of decedent's taxes and she is under obligation to pay all his taxes which remain unpaid. In fact, she is what the term "personal representative" imports - the representative of her deceased husband in all matters that pertain to his liabilities and to his estate. She is his iadem persona. . Not only is she the representative of decedent but she is also the representative of those who have claims against his estate, including the Government. *3522 23 C.J. 1170. This proceeding falls within section 281 of the Revenue Act of 1926. The difference between the situation here presented and that which was involved in , is too obvious for discussion. The determination of respondent was proper and we so hold.
Respondent made his determination within 5 years after the filing of the return for the year 1920 and within 4 years after the filing of the return for the year 1921 and petitioner filed her petition with the Board within 60 days after the mailing of the notice of deficiency. Neither the assessment nor collection of the tax for either year is barred. Section 277(a) (2)(3)(4) and (b) and section 278(d) of the Revenue Act of 1926.
Judgment will be entered for the respondent.