-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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