
    Keystone Coal & Mining Co., Petitioner, v. Commissioner of Internal Revenue, Respondent.
    Docket No. 10168.
    Promulgated January 27, 1928.
    
      Gliarles H. Garnett, Esq., for the petitioner.
    
      Dwight H. Green, Esq., for the respondent.
   OPINION.

Green :

The petitioner contends that it is within the four-year period of limitation as provided in section 250(d) of the Revenue Act of 1921 and that this section is applicable to its return filed on September 14,1921, for the fiscal year ended on June 30, 1921. The deficiency letter was mailed on November 9, 1925, more than four yéars after the filing of the return.

The petitioner made and filed an income and profits-tax return on September 14, 1921, for the fiscal year ended June 30, 1921, and there was no claim that it was false or fraudulent with intent to evade the tax. The petitioner is not liable for an additional tax for such taxable year after the enactment of the Revenue Act of 1921 by reason of any change in the law. *

The material facts in this case are very similar to those in M. Brown & Co. v. Commissioner, 9 B. T. A. 753. In that case the Board held that a return properly filed for a fiscal year ended in 1921, but before the passage of the Revenue Act of 1921, was a legal return for the taxable year under the law and regulations, and operated to start the running of the four-year period of the statute of limitations, and that since the deficiency notice for the taxable year was mailed more than four years after the return was filed, assessment and collection of the deficiency is barred.

In view of our conclusion that the statute of limitations has run, it is not necessary to consider the petitioner’s second allegation of error, i. e., that the income was derived from leases on unallotted tribal lands of the Choctaw and Chickasaw tribes of Indians and therefore not subject to tax. However, it has been decided by the United States Supreme Court in Heiner v. Colonial Trust Co., 275 U. S. 232, that such income is taxable. Terrell Co. v. Commissioner, 9 B. T. A. 1131.

Judgment will be entered for the 'petitioner.  