Burnet v. First Nat. Bank of Fresno, 46 F.2d 631 (9th Cir. 1931)

G. A. Youngquist, Asst. Atty. Gen., J. Louis Monarch and Andrew D. Sharpe, Sp. Assts. to the Atty. Gen. (C. M. Charest, Gen. Counsel, Frank M. Thompson, Jr., Sp. Atty., Bureau of Internal Revenue, both of Washington, D. C., of counsel), for petitioner.

Claude I. Parker and Ralph W. Smith, both of Los Angeles, Cal., for respondent.

Before RUDKIN and WILBUR, Circuit Judges, and NORCROSS, District Judge.

PER CURIAM.

The respondent has interposed a motion to dismiss the petition for review for the reason that the petition for appeal from the determination of the Commissioner of Internal Revenue to the Board of Tax Appeals was not properly verified, and for the further reason that the respondent was dissolved at the time the appeal was prosecuted. The motion is without merit.

In discussing a defective verification to a petition, in Leidigh Carriage Co. v. Stengel (C. C. A.) 95 F. 637, 641, Judge Taft said:

"The second objection embodied in the second and sixth assignments of error is that the petition and application were not properly verified. The petition and application were, as we have seen, signed in the names of the petitioners by the attorneys, and there was a verification showing that these attorneys were attorneys of record, and that the facts were true. We do not propose now to pass upon the question whether this petition was verified in proper form. The petition was answered by all the parties in interest, without any objection to its form. We have not the slightest doubt that, under any system of pleading, such a pleading to the merits waives all formal or modal matters. A verification of the petition is certainly a formal or modal matter, and does not reach to the jurisdiction."

Nor was the respondent dissolved at the time the appeal from the determination of the Commissioner of Internal Revenue was taken. Central Nation Bank v. Insurance Co., 104 U.S. 54, 26 L. Ed. 693; Steward v. Bank (C. C. A.) 27 F.(2d) 224, 226.

The motion to dismiss is therefore denied, and the decision of the Board of Tax Appeals is reversed on the authority of Burnet, Com'r of Internal Revenue, v. Bank of Italy (C. C. A.) 46 F.(2d) 629, just decided.

[*] Certiorari denied 51 S. Ct. ___, 75 L. Ed. ___.