-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 appliedPage: Previous 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 43 44 45 46 Next
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