
    Appeal of UNITED PAPER CO.
    Docket No. 9612.
    Submitted May 10, 1926.
    Decided June 28, 1926.
    1. The Revenue Act of 1926, section 283 (b), does not give jurisdiction to the Board of an appeal over which it had no jurisdiction under the Revenue Act of 1924.
    2. Where a petition on appeal'was filed with the Board under the Revenue Act of 1924, but more than 60 days after the date when the notice of the determination of the deficiency was mailed to the taxpayer, no appeal is pending at the date of the enactment of the Revenue Act of 1926 and the Board has no jurisdiction to redetermine the deficiency.
    
      Harry Friedman, Esq., for the petitioner.
    
      T. M. Wilkins, Esq., for the Commissioner.
    Before Phillips.
   Phillips

: On October 3, 1925, the Commissioner sent to the taxpayer by registered mail notice of the determination of a deficiency of $18,723.85 for 1920. On December 3, 1925, the taxpayer filed with the Board a petition in which it purported to appeal from such determination. On April 5, 1926, the Commissioner moved to dismiss the petition on the ground that the Board is without jurisdiction to hear and determine the appeal, the petition not having been filed within 60 days from the date of the mailing of the deficiency notice.

The petition was filed with the Board under the Revenue Act of 1924. When it was filed, the time within which an appeal might be taken had expired and the Board was without jurisdiction. Appeal of Sam Satovsky, 1 B. T. A. 22; Belmont Smokeless Fuel Co. v. Board of Tax Appeals (Supreme Court of the District of Columbia, decided December 22, 1925.) No order of dismissal had been entered prior to February 26, 1926, the effective date of the Revenue Act of 1926, and it is claimed that the Board has jurisdiction under the provisions of section 283 (b) of that Act, which, so far as material, reads:

If before tlie enactment of this Act any person has appealed to the Board of Tax Appeals under subdivision (a) of section 274 of the Revenue Act of 1924 * * * and the appeal is pending before the Board at the time of the enactment of this Act, the Board shall have jurisdiction of the appeal.

The petition not having been filed within the time prescribed by subdivision (a) of section 274 of the Revenue Act of 1924, it seems clear that there has been no appeal taken under that section. At the time the petition was filed the Board had no jurisdiction to hear and determine any issue, and without such jurisdiction’ the filing of the petition can not constitute an appeal to the Board. An act has been performed which has no validity or significance.

It is said that the Board had jurisdiction to determine its own jurisdiction and to enter an order of dismissal and that, as this had not been done at the time the Revenue Act of 1926 was enacted, the appeal was pending. It has been said further that in such circumstances the Board must, under section 906 (c) of the Revenue Act of 1924, as amended by section 1000 of the Revenue Act of 1926, enter an order specifying the deficiency to be the amount determined by the Commissioner. The argument is that, if such an order must be entered, the appeal is pending until such order is made.

We do not believe the argument sound. Necessarily the Board has the power to determine whether jurisdiction exists and, if not, to make an appropriate record of its determination. This has customarily taken the form of an order. While in form a dismissal, the order is in effect a determination that no appeal has been taken, and there can be no jurisdiction even to dismiss the appeal in the sense in which dismissal is used in the statute. In those cases where the Board determines that it has no jurisdiction of the appeal, it does not provide in its order that the deficiency is the amount determined by the Commissioner.

It is our opinion that no appeal was taken under the Revenue Act of 1924, and that no appeal was pending at the time of the enactment of the Revenue Act of 1926. The motion of the Commissioner to dismiss the petition must be granted.

Order dismissing the ''petition will he entered.  