-75-
before respondent prepared a substitute return for it. The
“timely” reference in that and in the other cases is to such a
“terminal date” found not in the statute but (1) “first adopted
in Taylor Sec. v. Commissioner”, 40 B.T.A. 696 (1939), and
(2) subsequently followed in Blenheim Co. v. Commissioner, supra
at 910, and Georday Enters. v. Commissioner, 126 F.2d at 388.28
See also Blenheim v. Commissioner, 42 B.T.A at 1251 (preparation
of a substitute return by the Commissioner makes any later return
prepared by the taxpayer a “nullity”, which, in turn, means that
the taxpayer’s later return is not a “return” within the meaning
of former sec. 233); Taylor Sec., Inc. v. Commissioner, supra at
703 (Board declined to conclude that Congress intended that
delinquent returns filed by a foreign corporation after the
28 Respondent acknowledges that the terminal date in Taylor
Sec., Inc. v. Commissioner, 40 B.T.A. 696 (1939), Blenheim Co. v.
Commissioner, 125 F.2d 906 (4th Cir. 1942), affg. 42 B.T.A. 1248
(1940), and Georday Enters. v. Commissioner, 126 F.2d 384 (4th
Cir. 1942), was the point where the Commissioner prepared a
substitute return for the taxpayer. The Court of Appeals for the
Fourth Circuit stated as to this point that it is consistent
with, among other things, “the generally accepted rule concerning
the number of returns which may be filed.” Blenheim Co. v.
Commissioner, supra at 910. While the court also stated that
this point is not an “absolute and rigid rule”, we understand
that statement to mean that a foreign corporation may in certain
cases be entitled to benefit from its deductions where the
Commissioner has prepared a substitute return for the
corporation. In fact, had the Court of Appeals for the Fourth
Circuit adopted such an “absolute and rigid rule” in Blenheim,
its actions would have been inconsistent with its earlier holding
in Ardbern Co. v. Commissioner, 120 F.2d 424 (4th Cir. 1941),
modifying and remanding 41 B.T.A. 910 (1940), that the foreign
corporation was entitled to its deductions even though the
Commissioner had filed substitute returns for it.
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