Swallows Holding, Ltd. - Page 119

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          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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