1931 BTA LEXIS 2122 | B.T.A. | 1931
Lead Opinion
The petitioner contends that the consent in writing which extends the time for making assessment of the amount of income or profits taxes due under any return “for the year 1922, seven months ended July 31,” is not sufficient to extend the time for assessing the tax for the calendar year 1922, which is the period involved in this proceeding.
The expression “for the year 1922” and the expression “seven months ended July 31” are conflicting. The “year 1922” without any qualification, can be taken as meaning the calendar year. If either expression were used alone the meaning would be clear enough and it would not be necessary to resort to the usual rules of statutory construction of a doubtful or ambiguous instrument. When the two expressions are used together the instrument is ambiguous. If the expression had been “seven months ended July 31, 1922,” or the “taxable year 1922, seven months ended July 31,” we might well conclude that the period stated in the instrument was only the short period and not the calendar year and that the parties by mutual mistake had included the wrong period in the waiver. It might be reasonable to conclude that the period ended July 31, 1922, was referred to in the waiver.
The question here is whether the instrument contains a mistake of expression as to the period, both parties intending something else, that is, whether the instrument embraced terms not intended by the parties and does not contain their true meaning and intention, or
It is also a rule of construction that where particular words in an instrument are susceptible of two meanings, one of which will uphold the contract and render it valid, and the other of which will destroy or render it invalid, the former construction will be adopted so as to uphold the contract. Tiernan v. Jackson, 5 Peters 580; Cole Motor Co. v. Hurst, 227 Fed. 280; Cooper v. Northern Pacific Railroad Co., 212 Fed. 533.
Another rule of construction well recognized is that if no meaning can be given to a word or expression from the connection in which it is used, or if it is inconsistent with other expressed provisions of
In this instrument the words “ seven months ended July 31 ” when used in connection with the previous expression “ for the year 1922,” considered with the fact that the expressions were used in connection with the return already filed, which was for the calendar year 1922, are inconsistent with the former expressions.
In construing the instrument so as to arrive at the intention of the parties we must do so in the light of the circumstances surrounding the parties when the instrument was executed. We should place ourselves, as nearly as may be, in the situation of the parties so as to view the circumstances as they viewed them and in doing so we are better enabled to judge of the meaning of the language used. When' we do this there can be no doubt in our mind that the parties intended a waiver for the calendar year 1922. That was clearly the period for which the parties, both the taxpayer and the Commissioner, had in mind to extend the period.
It is also to be observed in this case that, after the execution of the waiver, both the parties apparently construed’ it as extending the time for the calendar year 1922. The Commissioner clearly relied upon this waiver as being sufficient to extend the time. Considering all the facts and circumstances, we are of the opinion that the waiver was for the calendar year 1922.
The petitioner also raised the question that there is no testimony to show that the Commissioner either signed the waiver in person or authorized any one in his behalf to sign it. The instrument, however, appears regular oii its face, with the Commissioner’s signature thereon. Apparently this signature was placed there not by the Commissioner personally, as it bears initials below the signature. However, there is a presumption that the signature was placed there by some one having authority to do it. The waiver appears upon its face to be properly executed and if it is not, the taxpayer should have introduced some evidence to the contrary. Until the contrary appears, a waiver which is regular on its face, bearing the signature of the proper parties, will be accepted and considered of legal and binding effect. Liberty Baking Co. v. Heiner, 34 Fed. (2d) 513; Pantages Theatre Co. v. Lucas, 42 Fed. (2d) 810; Marshall Wells Co. v. Willcuts, 41 Fed. (2d) 751; Diamond Alkali Co. v. Heiner, 39 Fed. (2d) 645.
In view of the foregoing, it is our opinion that the statute of limitations has not run. The case will be restored to the calendar for hearing on the merits in due course.
Reviewed by the Board.