Bryson

Brought to this court on petition for review of a final decision and order of redetermiriation of the United States Board of Tax Appeals, this ■ proceeding involves alleged deficiencies in income and profits taxes for the years 1917 and 1918, amounting to $2,863.42 and $5,741.89, respectively. The Board found that the alleged taxpayer, the respondent herein, was not liable for any deficiency of the Bryson-Robison Corporation for 1917 and 1918, but that he was liable as transferee of the assets of the corporation for its deficiency for 1919, in the amount of $2,273.-54, with interest.

The Commissioner has filed a petition for review of the Board’s decision, as to the years 1917 and 1918. The respondent filed a petition attacking that portion of the Board’s decision which found him liable for the deficiency for the year 1919. No brief has been filed or personal appearance made in this court in behalf of the respondent, and we assume that his petition “for cross-appeal” and review has been abandoned.

Prior to entering its final decision and order of redetermination, the Board at different stages of the present controversy filed an “opinion,” a “memorandum opinion and order,” a…

(concurring).

I concur in the decision. The body of the waiver produced by the Commissioner purports to be an agreement between the Bryson-Robison Corporation and the Commissioner. It is on a printed form, furnished by the Commissioner, and the only insertions possibly to be attributed to the taxpayer to whom it is tendered are its name in the body of the instrument and the signature. It was not signed in the corporate name. .The signer Bryson described himself to be a “former secretary.” In an accompanying letter he disclaims authority to act for the corporation. The wording of the document contains no agreement on the part of Bryson individually.

The Commissioner insists, and we hold, that the corporation was then in existence. If it had no 'officers a court of equity could have provided them and the contract of waiver could have been executed on its behalf. Had the Cpmmissioner of Internal Revenue sought a waiver of the statute of limitations by Bryson individually, it would have been simple enough to make plain that intention without varying from the general ■ form of “Income and Profits Tax Waiver” which has been in customary use in the Internal Revenue Department since the…

(dissenting).

I dissent from the opinion of the majority in so far as it holds that Bryson’s tax liability for the years 1917 and 1918 was barred by the statute of limitations. The decision of the Board of Tax Appeals to that effect was based upon the theory that if the tax was barred, as to the corporation a waiver of the transferee would not toll the statute as to his obligation. In so holding, the Board follows its decision in Newport Co. v. Commissioner of Internal Revenue, Helvering, 22 B. T. A. 833; that decision was affirmed by the Circuit Court of Appeals for the Seventh Circuit, 65 F.(2d) 925 , but reversed by the Supreme Court, 291 U. S. 485 , 54 S. Ct. 480 , 78 L. Ed. 929 . It was thus settled that a waiver by the transferee will toll the statute as to him. The Board of Tax Appeals held that the petitioner, Elmer D. Bryson, was the transferee of the corporation, and upon that basis held him liable as transferee of the assets of the corporation for its *404 deficiency for 1919. In sustaining that decision we are following the conclusion of the Board of Tax Appeals that Bryson was the transferee of the Bryson-Robison Corporation. There are certain facts upon this…