Swallows Holding, Ltd. - Page 81

                                        -37-                                          
          received from domestic corporations.  The Commissioner learned              
          that the taxpayer had not filed a corporate income tax return               
          (Form 1120) for that year and asked the taxpayer to do so.  The             
          taxpayer declined.  On April 28, 1938, the Commissioner prepared            
          a substitute return for the taxpayer and, on May 18, 1938, issued           
          to it a notice of deficiency.  On August 9, 1938, the taxpayer              
          filed a Form 1120 for 1934.                                                 
               The Board held that the filing of Form 1120H did not satisfy           
          the requirements of section 233 of the 1928 and 1932 Revenue Acts           
          because the personal holding company surtax was separate and                
          distinct from the corporate income tax.  Id. at 1251-1252.  As to           
          the Form 1120 filed by the taxpayer for 1934, the Board stated:             
                    Undoubtedly a taxpayer may litigate a                             
               determination of respondent on the basis of a return                   
               made by * * * [the Commissioner].  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.  Taylor Securities, Inc., 40 B.T.A. 696.                   
               * * *  [Id. at 1251.]                                                  
               On appeal, the Court of Appeals for the Fourth Circuit                 
          affirmed.  The court first quoted section 233 of the 1928 and               
          1932 Revenue Acts and then stated with respect thereto:  “It is             
          true that this section contains no reference to a time element.”            
          Blenheim Co. v. Commissioner, 125 F.2d at 908.  The court then              
          noted that section 233 of the 1928 and 1932 Revenue Acts applied            





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