Opinion of the Court tion of the tax liability for the years mentioned would be satisfactory and that the taxpayer would desire definitely to close the case as promptly as possible, the taxpayer was requested to execute Form 866 entitled "Agreement as to Final Determination of Tax Liability," which form was used for the purpose of finally closing a case under the provisions of section 606 of the Revenue Act of 1928. The taxpayer was. satisfied with the correctness of the deficiencies so determined by the Commissioner in this notice and on October 11, 1929, signed and filed with the Commissioner's office the agreement, Form 866. This closing agreement was not executed by the Commissioner or by the Secretary of the Treasury for the apparent reason, in view of what the Commissioner subsequently did, that the Commissioner came to the conclusion that an error had been made in the determination of the deficiencies for certain of the years. with respect of which the taxpayer had been notified by registered mail on September 4. The period of sixty days: following the mailing of the notice of September 4, 1929, expired on November 4. On November 2, 1929, two days. before the expiration of such period, the Commissioner assessed the deficiencies so determined for the years 19201923, inclusive. It does not appear from the reported facts whether or not at the time of assessment the Commissioner had discovered the error in the first determination as to 1920 and 1921. The reported facts do not disclose what action, if any, the collector took on the assessment of November 2, 1929, prior to institution by the taxpayer, apparently in 1932, of a proceeding in the District Court to enjoin the collection of the deficiencies so assessed. The taxpayer did not file a petition with the Board of Tax Appeals for a redetermination of the deficiencies for 1920 to 1923, inclusive, as determined by the Commissioner and set forth in the registered notice mailed by him on September 4, 1929. Thereafter, on March 29, 1930, the Commissioner afterfurther consideration of the tax liability of Ventura Consolidated Oil Fields for 1920 and 1921, in connection with his consideration of plaintiff's liability for 1919, determined that an error had been made in his prior determination of 219339-40-vol. 90-6 Opinion of the Court September 4, 1929, with respect to deficiencies due for the years 1920 and 1921. Thereupon he made an additional determination of the correct deficiencies for 1920 and 1921 which were $214,687.48 and $100,223.75, respectively, in excess of the deficiencies previously determined and of which the taxpayer had been notified. On that date, March 29, 1930, the Commissioner notified the taxpayer of his final determination of its correct tax liability for 1919, 1920, and 1921 and of the deficiencies first determined and assessed and also, of the additional deficiencies for 1920 and 1921 above mentioned The Commissioner was authorized to make and mail notice of this second determination since the taxpayer had taken no appeal from the first determination. See section 274 (f) of the Revenue Act of 1926. Upon receipt of this deficiency notice of March 29, 1930, the taxpayer filed a petition with the Board of Tax Appeals contesting the correctness of the Commissioner's determination for 1920 and 1921. Upon this appeal the jurisdiction and authority of the board and the appellate courts extended not only to the amount of the additional deficiencies last determined by the Commissioner, but to the entire tax liability including the original tax paid upon the returns and the deficiencies for 1920 and 1921 first determined by the Commissioner in the notice of September 4, 1929, and assessed on November 2, 1929. Thereafter, on July 13, 1931, the taxpayer agreed to the correctness of the tax liability determined by the Commissioner for 1920 and 1921, which amount included the deficiencies determined September 4 and assessed November 2 and, also, to the correctness of the additional deficiencies determined by the Commissioner in his second determination of March 29, 1930. A stipulation by the parties to that effect was filed with the Board of Tax Appeals and the Board accordingly entered its decision approving the deficiencies as determined by the Commissioner. In this stipulation the taxpayer stated that it contended that the assessment of November 2 was illegal and that by stipulating the correctness of the tax liability which included the deficiency so assessed and the correctness of the deficiencies determined on March 29, 1930, it did not admit that the assessment of November 2, 1929, was valid. Opinion of the Court The second, or additional, deficiencies of $214,687.48 and $100,223.75 determined by the Commissioner for 1920 and 1921 on March 29, 1930, were assessed and paid subsequent to the decision of the Board of Tax Appeals and were not involved in the proceeding for an injunction subsequently instituted by the taxpayer. Although the reported facts do not definitely show, it would appear that the collector took no action to collect the deficiencies for the years 1920 to 1923, inclusive, first determined by the Commissioner until the additional deficiencies determined on March 29, 1930, were finally determined by the Board and assessed, and when demand was made by the collector for payment of the deficiencies determined on September 4, and assessed on November 2, 1929, the taxpayer instituted a proceeding in the District Court praying an injunction under section 274 (a), Revenue Act of 1926, restraining the collector from collecting, or attempting to collect, the deficiencies so assessed on the ground that the assessment having been prematurely made was void; that the notice which the Commissioner mailed to the taxpayer on September 4, 1929, disclosing his determination of these deficiencies was not a proper deficiency notice under section 274 (a), and that the registered notice of March 29, 1930, was not a deficiency notice as to the first deficiencies for 1920 and 1921. The injunction proceeding instituted by the taxpayer was begun after the expiration of the statutory period of limitation as extended by waivers within which the Commissioner might assess the tax. But under section 278 (d) and section 1109 (a) (3), Revenue Act of 1926, giving six years after assessment to collect the government insisted legal collection could be made. The District Court dismissed the suit-6 Fed. Supp. 327, 331. The Circuit Court of Appeals, by a divided court, held, first, that the registered notice of September 4, 1929, was not a proper deficiency notice under the provisions of section 274 (a); second, that if it was a notice of the deficiencies from which the taxpayer might have appeal to the Board of Tax Appeals within sixty days, or if the letter of March 29, 1930, from which an appeal was taken, was a notice of the deficiencies first determined for 1920 and 1921, Opinion of the Court collection of the deficiencies first determined should be permanently enjoined for the reason that such deficiencies had been assessed before the expiration of sixty days following the mailing of the first notice and before the mailing of the second notice; that such assessment was therefore void and of no effect and that no legal collection could be made thereon at any time. In the case of the United States v. Yellow Cab Co., supra, it appears from the original record before the Circuit Court of Appeals that the Commissioner made a final determination in respect of the tax liability of the Yellow Cab Company for 1924, 1925 and 1926, and on December 30, 1929, one day before the expiration of the statute of limitation as extended by waiver, mailed to the taxpayer a registered deficiency notice from which the taxpayer was entitled to appeal to the Board of Tax Appeals. A waiver of the statute of limitation which the taxpayer had filed provided that if a deficiency notice was mailed before December 31, 1929, the limitation period for assessment and collection should then be further extended as provided by statute. The taxpayer filed a petition with the Board of Tax Appeals on February 27, 1930. Paragraph 3 of the petition filed with the board stated that the taxes in controversy were for the calendar years 1924, 1925, and 1926, for which the Commissioner had determined deficiencies, but the only errors alleged in the petition to have been committed by the Commissioner in his determination were stated specifically as concerning only the years 1925 and 1926; and no error was alleged in the petition before the Board and no statement of fact was made therein asserting in any way that the deficiency determined by the Commissioner for 1924 was contested or was, in any wise, incorrect. On March 15, 1930, while this petition was pending before the board, the deficiency for 1924, which the Commissioner had determined, was assessed with accrued interest to the date of assessment. On March 29, 1930, the collector mailed to the taxpayer notice and demand for the deficiency, and interest, for 1924. Immediately upon receipt of this notice and demand the taxpayer advised the collector that the deficiency for 1924 was not properly payable since the proceeding before the Board of Tax Appeals covering the Opinion of the Court deficiency for 1924 was still pending and that no final order or decision with respect thereto had been made by the board. Thereupon the collector took no further steps to collect the deficiency until October 7, 1930. In the meantime, on April 14, 1930, the Commissioner filed with the Board of Tax Appeals a motion to dismiss the petition, insofar as it related to the year 1924, for the reason that it contained no assignment of error nor any allegation of fact with respect to the year 1924. This motion of the Commissioner came on for hearing before the board on June 18, 1930, and no objection was made to the motion and no appearance was made on behalf of the taxpayer. On the following day the board entered its decision granting the motion to dismiss as to 1924 on the grounds stated therein and finding a deficiency for that year in the exact amount determined by the Commissioner. Thereafter, on October 7, 1930, the collector sent to the taxpayer a notice and demand for the payment of the deficiency for 1924 which had theretofore been assessed on March 15, 1930. No response or communication was received by the collector from this notice and demand and on October 27, 1930, he sent to the taxpayer another notice and demand for payment of the 1924 deficiency and interest to the date of assessment. On the same date, to-wit, October 27, 1930, the taxpayer paid the deficiency for 1924, together with interest, under written protest stating that the tax and interest were being paid to avoid penalties and distraint on property and declaring, in the same protest, that "the assessment of said tax and demand for payment and enforcement thereof are unlawful." The taxpayer in the Yellow Cab case did not at any time apply to any court for an injunction to restrain the collector from collecting, or attempting to collect, the deficiency for 1924 prior to a date six months after entry of the decision of the Board dismissing the petition as to such year. Thereafter, on February 26, 1934, more than three years after payment the Yellow Cab Company, after filing a claim for refund, brought suit in the District Court for the Northern District of Illinois to recover the deficiency and interest paid for 1924 on the sole ground that the assessment of March 15, 1930, was void and that collection on the basis thereof was likewise illegal and void. The |