-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.Page: Previous 65 66 67 68 69 70 71 72 73 74 75 76 77 78 79 80 81 82 83 84 Next
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