Alfred J. Martin - Page 10

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          H. Rept. 2, 70th Cong., 1st Sess. (1927), 1939-1 C.B. (Part 2)              
          384, 399-400; see also S. Rept. 960, 70th Cong., 1st Sess.                  
          (1928), 1939-1 C.B. (Part 2) 409, 431.                                      
               In Eversole v. Commissioner, 46 T.C. 56 (1966), the                    
          taxpayers contended that the petition, which an improper party              
          had filed on the estate’s behalf and this Court had dismissed as            
          to the estate, failed to suspend the limitations period.  Relying           
          on the legislative history of section 277 of the Internal Revenue           
          Code of 1939, a predecessor of section 6503(a)(1) (quoted supra),           
          as well as statutory language and relevant case law,13 we held              
          that the petition suspended the limitations period.  Id. at 64-             
          65.  In reaching our conclusion, we found it significant that the           
          language of section 277 of the Internal Revenue Code of 1939                
          required suspension of the limitations period when a proceeding             
          “is placed” on the docket rather than when “the taxpayer places”            
          a proceeding on the docket.  Id. at 64.                                     
               Petitioner attempts to distinguish Eversole from the instant           
          case on the basis of the improper party’s relationship to the               


               13One such case on which we relied was Am. Equitable                   
          Assurance Co. v. Helvering, 68 F.2d 46 (2d Cir. 1933), affg. 27             
          B.T.A. 247 (1932).  Responding to a similar challenge to the                
          limitations period, the Court of Appeals for the Second Circuit             
          concluded that “the mere placing on the docket of the Board of a            
          proceeding in respect to the deficiency” suspended the                      
          limitations period.  Id. at 47.  The Court of Appeals for the               
          Second Circuit reasoned that “Congress did not intend to have the           
          time a proceeding was pending before the Board counted any more             
          when the decision was a dismissal for want of jurisdiction than             
          when it was not.”  Id.                                                      





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