Swallows Holding, Ltd. - Page 84

                                        -40-                                          
                    It will thus be noted that Section 233 relating to                
               foreign corporations, which made its first appearance                  
               in the Revenue Act of 1928, 26 U.S.C.A. Int. Rev. Acts,                
               page 419, is almost verbally identical with this                       
               section governing nonresident aliens which has been a                  
               part of the revenue laws since 1918.  The application                  
               of Section 217 of the 1918 Act is clear.  From the                     
               outset the Treasury Regulations have expressly provided                
               that no deductions were allowable to nonresident aliens                
               unless an accurate and complete return was filed, and                  
               the filing of the return by the Commissioner fixed the                 
               tax liability.  * * *                                                  
                              *    *    *    *    *    *    *                         
                    The foregoing regulation [Article 311 of Treasury                 
               Regulations 45] states specifically that deductions are                
               allowable to a nonresident alien only if a return is                   
               filed, and, if no return has been filed at the time the                
               Commissioner prepares a return for the taxpayer, the                   
               tax shall be assessed with no allowance for deductions.                
               Congress may be presumed to have adopted this                          
               longstanding administrative construction when it                       
               enacted and reenacted Section 233.  Brewster v. Gage,                  
               1930, 280 U.S. 327, 50 S. Ct. 115, 74 L.Ed. 457, Morgan                
               v. Commissioner, 1940, 309 U.S. 78, 626, 60 S. Ct. 424,                
               84 L.Ed. 585, 1035.  [Id. at 910.]                                     
          The Court of Appeals for the Fourth Circuit distinguished its               
          holding in Ardbern Co. v. Commissioner, 120 F.2d 424 (4th Cir.              
          1941), stating:                                                             
               A substantially different factual situation is                         
               presented in the case before us.  Here the Commissioner                
               prepared a return only after he had unsuccessfully made                
               repeated requests to the taxpayer to do so, and only                   
               after the taxpayer had flouted all of these requests.                  
               Then, after the Commissioner had assessed a deficiency                 
               on the basis of his return, but only then, the                         
               petitioner filed its petition for review by the Board                  
               and also a return.                                                     
                    Unless the deductions are here denied, Section 233                
               will become a meaningless provision, for if, after the                 
               Commissioner has earnestly attempted to obtain a return                
               by the taxpayer and has waited a reasonable time before                





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