- 15 -
and issued a notice of deficiency. Thereafter, the corporation's
secretary filed a Form 1120 for the year in question. The Board
held that the filing of Form 1120H did not satisfy the
requirements of section 233 of the Revenue Acts of 1928 and 1932
because the personal holding company surtax was a separate and
distinct tax from the corporate income tax. The Board went on to
distinguish its holding in Anglo-American Direct Tea Trading Co.
v. Commissioner, supra, noting that
Undoubtedly a taxpayer may litigate a determination of
respondent on the basis of a return made by * * *
[respondent]. But, a "return" filed by a taxpayer after
such a return has been prepared and filed for him by
respondent, under the circumstances existing here, is a
nullity and does not comply with section 233, supra. The
taxpayer can not thus take advantage from an alleged return
submitted by the taxpayer not only after respondent's filing
of its return * * * but also after the issuance of a notice
of deficiency. * * * [Blenheim Co. v. Commissioner, 42
B.T.A. at 1251.]
The Court of Appeals for the Fourth Circuit affirmed the
Board of Tax Appeals. However, rather than simply relying on
Taylor Sec., Inc. v. Commissioner, supra, the Court of Appeals
for the Fourth Circuit placed emphasis on the fact that the
taxpayer filed a return after the Commissioner had prepared a
substitute return for the taxpayer. The Court stated:
The conclusion that the preparation of a return by
the Commissioner a reasonable time after the date it
was due terminates the period in which the taxpayer may
enjoy the privilege of receiving deductions by filing
its own return, is consistent not only with the
intention of Congress * * * but also with
considerations of sound administrative procedure and
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