65 F.2d 178 | D.C. Cir. | 1933
The appeal in this ease involves income taxes for the year 1918 in the amount of $23,-945.57, of which $3,895.67 have been paid, and is taken from the decision of the Board of Tax Appeals.
The board found the facts substantially as follows: On February 7, 1924, the commissioner notified the taxpayer that he proposed to assess $42,702.50 additional tax for 1918. He asked for a waiver of the statute of limi- ' tations as a condition of not making this as-
The head of division referred to was always some one who had been specifically authorized by the commissioner in writing to sign his name. The practice of the department under this rule was to have the head of division pass upon the acceptability of the waiver and then to authorize a subordinate to sign the commissioner’s name in evidence of approval. In the ease of Fleitmann & Crimmins, Executors, v. Commissioner, supra, we said we would assume, nothing appearing to the contrary, that the rule had been duly observed, and held that the signing of the commissioner’s name was a ministerial act and that when a duly authorized deputy had exercised the discretionary authority to accept or reject the waiver, the mere physical act of signing the waiver was no more than carrying out in a ministerial way the discretion which had already been exercised, and was, therefore, a valid act. All of the reasons which we set out as sustaining the decision of the Board of Tax Appeals in that case apply in this, and it would serve no useful purpose to repeat them.
An additional point made by petitioner in this case is that as to the second and third waivers a statement in the commissioner’s letter to the effect that the period of limitations was about to expire was in point of fact incorrect since the period had already expired, but we think this cannot change the result. The fact that the statute of limitations was then available to the taxpayer does not invalidate subsequently executed waivers. See Stange v. United States, 282 U. S. 270, 51 S. Ct. 145, 75 L. Ed. 335. Besides this, there is nothing to show that the taxpayer in executing these subsequent waivers was induced or misled by the commissioner’s letter. As a matter of fact, he succeeded as a result of this in having a tax liability then fixed at forty-two thousand and odd dollars reduced nearly 50 per cent.
The decision of the Board of Tax Appeals is affirmed.
Affirmed.