
    Ellis P. Earle, Petitioner, v. Commissioner of Internal Revenue, Respondent.
    Docket No. 13565.
    Promulgated May 24, 1928.
    
      Albert E. James, Esq., for the petitioner.
    
      L. G. Mitchell, Esq., for the respondent.
   OPINION.

Littleton :

The claim of petitioner that the collection of the additional tax claimed by the Commissioner for the year 1917 is barred by the statute of limitations is well taken. Petitioner’s return was filed May 1, 1918, and the Commissioner’s notice of deficiency was mailed to the petitioner on January 12, 1926, more than five years after the filing of the return.

The Commissioner appears to rely upon various correspondence between him and the taxpayer as constituting a consent to a later determination and collection of the tax assessed in March, 1923, but the Board can find nothing in this correspondence indicating that either the petitioner or the Commissioner regarded it as such a consent within the meaning of the statute.

It appears that on December 19, 1922, the Commissioner mailed to the petitioner a 30-day notice and requested him to execute a consent for a determination, assessment, and collection of the proposed additional tax for 1917 beyond the five-year period provided in the Revenue Act of 1921; that the petitioner declined to execute such a consent; that on January 20, 1923, the Commissioner again wrote to the petitioner sending him a written consent and requesting him to execute same and advising petitioner that unless the consent should be executed by him an immediate assessment of the additional tax proposed in the 30-day letter for 1917 would be made. Again, on January 25, 1923, the Commissioner advised petitioner that unless the consent theretofore requested should be executed by him within 10 days, the proposed additional tax for 1917, as set forth in the 30-day notice of December 19, 1922, would be assessed. January 26, 1923, petitioner answered the Commissioner by letter in which he expressly declined to execute the consent.

It is clear that the collection of - any additional tax for the year 1917 is barred. Theodore H. Wickwire, Jr., et al., Executors, 10 B. T. A. 102.

Judgment of no deficiency will he entered.  