94 F.2d 187 | 5th Cir. | 1938
David D. Irwin, as executor of George • J. Baldwin, sued the Collector of Internal Revenue to recover income taxes illegally exacted from the testator’s estate. His suit was dismissed on motion, and he appeals.
The petition alleges that testator in his lifetime made his return of income for the year 1924. The Commissioner, subsequently to testator’s death, under date of September 21, 1928, sent a notice of a proposed assessment of deficiency addressed to the testator at his home in Savannah, Ga. This notice was received by George H. Baldwin, a son and at that time a co-executor of the testator, who from Jacksonville, Fla., made a protest. He therein gave the names of both executors and their address as Jacksonville, and then proceeded in behalf of both to state the grounds of the protest. He alone signed and swore to the protest. On November 15, 1928, the Commissioner issued a notice of final determination of the- deficiency, addressing it to “George H. Baldwin, Executor Estate of George J. Baldwin,” Jacksonville, Fla. This notice contained the usual reminder that a petition for redetermination of the tax by the Board of Tax Appeals might be filed within sixty days. About December 14, 1928, “George H. Baldwin, Executor of Estate of George J. Baldwin, Petitioner,” by attorney at law, filed a formal petition before the Board
If the present petition had omitted all reference to the proceedings before the Board of Tax Appeals instead of exhibiting them, the ordinary case of a tax paid under protest, refund denied, and suit for recovery would be presented. The point made is that by Revenue Act of 1928, § 322, 45 Stat. p. 791, 26 U.S.C.A. § 322 and note, it is provided: “If the Commissioner has mailed to the taxpayer a notice of deficiency under section 272(a) and if the taxpayer files a petition with the Board of Tax Appeals, * * * no credit or refund * * * shall be allowed or made and no suit by the taxpayer for the recovery of any part of such tax shall be instituted in any court,” with exceptions not here material. The reply offered is that the notices to and the action by George H. Baldwin was not notice to and action by the “taxpayer.”
In the Revenue Acts of 1926, § 2(a) (1, 9), 44 Stat. 9, and of 1928, § 701 (a) (1, 13), 45 Stat. 791, 878, 879, 26 U.S.C.A. § 1696 (1, 14) and note, these definitions occur: “The term ‘taxpayer’ means any person subject to a tax imposed by this title [the Act].” “The term ‘person’ shall be construed to mean and include an individual, a trust, estate, partnership, * * * or corporation.” George J. Baldwin was the .taxpayer until his death, and his “estate” was the taxpayer afterwards. How may notice be given to an estate ? Obviously, by notifying its legal representative. If there be more than one, notice in ordinary matters to one would be notice to all. It would be the duty of one having notice to impart it to the others. Espocially in the case of co-executors are all regarded as one in dealings with the public. Each is authorized to represent the estate in discharging the usual functions of an executor; the act of one being the act of all. Wilkerson v. Wootten, 28 Ga. 568; Schuler, Execrs. and Admrs., 6th Ed., § 3223; 11 R.C.L., Execrs. and Admrs., § 491; 24 C.J., Execrs. and Admrs., § 2815. When, however, special trusts are devolved upon them by the will, they are as to such matters trustees and according to the law of trusts all must join in executing them. 11 R.C.L., supra; 24 C.J., Efxecrs. and Admrs., § 2816; Hosch Lumber Co. v. Weeks, 123 Ga. 336, 339, 51 S.E. 439. This, indeed, is statute law in Georgia, where the testator resided and where his will was probated and these executors qualified, with the added provision that all must join in making contracts binding on the estate or in «paying out funds belonging to the estate. Georgia Code of 1933, § 113-1504. In legal proceedings, however, it is proper that coexecutors should join when suing and be joined when sued. 11 R.C.L., Execrs. and Admrs., § 504; 24 C. J., Execrs. and Admrs., §§ 2038, 2039. If one is omitted, the remedy is by plea in abate
From this view of the law touching coexecutors we are of opinion that while a notice in a legal proceeding touching the estate ought regularly to be addressed to all its representatives, the estate will be affected by notice given one only of them when treated by him as sufficient and acted on by him in defending the estate against the claim. Notice in the present case was thus given the taxpayer, the estate of George J. Baldwin, of the deficiency. Also, the petition of the notified executor to the Board of Tax Appeals in behalf of the estate, pending for four years without any objection from any source because of nonjoinder of the other executor, and fully presenting the defense of the estate, is the petition of the taxpayer, said estate. The Board of Tax Appeals is not strictly a court, Old Colony Trust Co. v. Commissioner, 279 U.S. 716, 49 S.Ct. 499, 73 L.Ed. 918, but procedure before it resembles court procedure, and good practice would require that all the representatives of an estate be parties that they may be heard. But we think that where one of them brings the estate’s matter before the Board, the other remaining inactive, even though ignorant of the proceeding, that a decision on the merits binds the estate. The decision here was acquiesced in; no review of it being sought before the Circuit Court of Appeals. We do not think the active executor by resigning and placing the other in full charge could relieve the estate of the consequences of the decision of the Board of Tax Appeals. The right to ask or sue for a refund for the estate was gone.
Judgment affirmed.