Opinion
Civ. No. 3880.
June 23, 1958.
Hugh K. Martin, U.S. Atty., for Southern District of Ohio, Richard H. Pennington, Asst. U.S. Atty., for Southern District of Ohio, Cincinnati, for plaintiff.
Sol Goodman, Theodore M. Berry, Cincinnati, Ohio, for defendants.
This cause, having come on for trial before the Court, sitting without a jury, on the 19th day of February, 1958, and the Court having heard the testimony, examined the evidence and the briefs filed by the respective parties, and being fully advised in the premises thereof, hereby enters the following Findings of Fact and Conclusions of Law.
Findings of Fact
1. This action was authorized by the Commissioner of Internal Revenue, a delegate of the Secretary of the Treasury and was brought under the direction of the Attorney General of the United States.
2. Mary Jo Williams resides at 1352 William Howard Taft Road, Cincinnati, Ohio, and prior to his death, Percy L. Williams also resided in Cincinnati, Ohio.
3. On July 28, 1954, Percy L. Williams filed with the District Director of Internal Revenue of Ohio a power of attorney with respect to all matters involving his federal taxes, particularly for the years 1944, 1945, 1946, and 1948. This power of attorney authorized and requested that all communications relative to Williams' tax matters be mailed to Mr. Sol Goodman, 1016 Union Trust Building, Cincinnati, Ohio.
4. In 1953 an investigation was conducted by the Internal Revenue Service into the income tax liabilities of Percy L. Williams for the taxable years 1944, 1945, and 1946. This investigation was culminated late in 1955.
5. Percy L. Williams died on November 3, 1955.
6. On December 2, 1955, the Commissioner of Internal Revenue issued a statutory notice of deficiency (90-day letter) to Percy L. Williams asserting a deficiency of income taxes, plus penalties and interest for the taxable years 1944, 1945, and 1946. The statutory notice of deficiency was sent by registered mail to Mr. Percy L. Williams, c/o Sol Goodman, 1016 Union Trust Building, Cincinnati, Ohio.
7. Prior to the issuance of the statutory notice of deficiency there had never been filed with the Commissioner of Internal Revenue or the District Director of Internal Revenue for Ohio any notice of fiduciary relationship on behalf of Mary Jo Williams.
8. On March 30, 1956, the Commissioner of Internal Revenue made a deficiency assessment of income taxes, penalties and interest against Percy L. Williams for the taxable years 1944, 1945, and 1946 as follows:
Kind of Assessment 1944 1945 1946 Income Tax $ 9,806.09 $2,603.88 $1,250.68 Interest 6,496.19 1,568.75 678.45 293(b) Fraud Penalty 6,593.38 1,301.94 625.34 294(d) Penalty 423.60 187.26 ------ __________ _________ _________ $22,319.26 $5,661.83 $2,554.47
These assessments were for the same years and in the same amounts as set out and asserted in the statutory notice of deficiency sent to Percy L. Williams on December 2, 1955.
9. On April 2, 1956, notice was given and demand made for the payment of the taxes, penalties and interest as assessed on March 30, 1956.
10. Notice of tax lien in the sum of $30,535.56, representing the taxes, penalties and interest as assessed against Percy L. Williams, on March 30, 1956, was filed with the Recorder of Hamilton County, Cincinnati, Ohio, on April 23, 1956.
11. No part of the assessment made against Percy L. Williams on March 30, 1956, has been paid.
12. The deficiencies in income taxes asserted and assessed against Percy L. Williams on March 30, 1956, were due to fraud on the part of Percy L. Williams with an intent to evade tax.
13. On August 17, 1956, the Acting District Director of Internal Revenue of Ohio filed with Mary Jo Williams, the administratrix of the estate of Percy L. Williams, a statement of claim for taxes as assessed on March 30, 1956, in the total amount of $30,535.56.
14. On September 14, 1956, Mary Jo Williams, administratrix of the estate of Percy L. Williams, acknowledged that the claim was filed and gave notice that said claim was rejected and disallowed. No part of the claim filed with Mary Jo Williams has been paid to this date.
15. At the time of his death, Percy L. Williams was the owner of real property and improvements thereon described as:
Part Lot 9 F.B. Williams Sub. Cinti. Hamilton County known as 1352 William Howard Taft Road. Auditor Pl. 62-1-106
16. Also at the time of his death, Percy L. Williams was the owner of the following personal property:
Cash on hand $1,500.00 Central Trust Co. account 19.25
1954 Ford Tudor automobile Mosel U4 Serial No. U4NC147404 51 Shares of Stock in Playbowl, Inc., held by F.D. Henry, Trustee.
17. At the time of his death, Percy L. Williams was also the owner of a certain contract right resulting from an agreement with Mrs. Ruth Levitch and that at present under such contract agreement there is due and owing from Mrs. Levitch to the estate of Percy L. Williams the sum of $4,870.46.
Conclusions of Law
1. This court has jurisdiction of this action by virtue of Sections 1340 and 1345, Title 28 U.S.C.
§ 2. The statutory notice of deficiency issued by the Commissioner of Internal Revenue and sent by registered mail on December 2, 1955, was sent to the last known address of Percy L. Williams within the meaning of Section 272(a) and (k) of the Internal Revenue Code of 1939, 26 U.S.C. § 272(a, k).
3. Mary Jo Williams is indebted to the United States of America as administratrix of the estate of Percy L. Williams in the sum of $30,535.56 plus interest from the date of the assessment until paid.
4. The United States of America has a lien for taxes in the sum of $30,535.56 plus interest until paid on all property, real and personal still in control of the defendant, Mary Jo Williams, either as administratrix of the estate of Percy L. Williams or as distributee of the estate of Percy L. Williams.
5. The United States of America has a lien for federal taxes on the sum of $4,870.46 that is due from Mrs. Ruth Levitch to the estate of Percy L. Williams.
6. The United States of America is entitled to have its lien for taxes foreclosed against any assets remaining in the control of Mary Jo Williams either as administratrix of the estate of Percy L. Williams or as distributee of the estate of Percy L. Williams.
7. The United States is entitled to a deficiency judgment against Mary Jo Williams as administratrix of the estate of Percy L. Williams in the amount of any assessment remaining unsatisfied after any foreclosures or payments against the tax liabilities pursuant to this action, plus interest until paid.