T.C. Memo. 1999-67

UNITED STATES TAX COURT

UNILEVER SUPERANNUATION TRUSTEES LIMITED, Petitioner v.

COMMISSIONER OF INTERNAL REVENUE, Respondent

Docket No. 10022-97. Filed March 5, 1999. 

 

K. Peter Schmidt, for petitioner.

Gary D. Kallevang, for respondent.

MEMORANDUM OPINION

LARO, Judge: Petitioner moves for summary judgment,

asserting that section 6501 does not allow respondent to assess

tax for the years in issue. Respondent moves for partial summary

judgment, asserting primarily that the notices of deficiency are

timely under section 6501(c)(3). Respondent issued the notices
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of deficiency to petitioner on December 19, 1996, after

determining deficiencies in the 1991, 1992, and 1993 income tax

of Unilever Superannuation Fund (Fund). 

Following respondent's concession that the Fund does not

have a deficiency for 1992, we must decide whether the notices of

deficiency are timely as to 1991 and 1993. We hold they are. 

Unless otherwise indicated, section references are to the

Internal Revenue Code in effect for the subject years. Dollar

amounts are rounded to the nearest dollar. 

Background

The Fund is a trust with its principal office in London,

United Kingdom. Petitioner is the Fund's trustee. The Fund does

not engage in a trade or business in the United States, it does

not have income effectively connected with a U.S. trade or

business, and it does not have income attributable to a permanent

establishment in the United States.

During 1991 and 1993, the Fund received dividends on stock

it owned in certain domestic corporations. These dividends were

subject to Federal income tax withholding in the amounts of

$867,222 for 1991 and $606,120 for 1993. The withholding agents

withheld the required amounts of tax and remitted the withheld

amounts to respondent. The agents and certain financial

intermediaries involved in these transactions filed with

respondent 1991 and 1993 Forms 1042, Annual Withholding Tax
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Returns for U.S. Source Income of Foreign Persons, and 1991 and

1993 Forms 1042S, Foreign Person's U.S. Source Income Subject to

Withholding. (The agents and financial intermediaries had

previously issued the Fund copies of the Forms 1042S.) These

forms were not required to, and did not, list the taxpayer

identification number of either the Fund or petitioner. These

forms also were not signed by either of these two. Forms 1042

and 1042S make no provision for signature by the persons from

whom taxes are withheld.

On June 8, 1992, petitioner submitted to respondent a 1991

Form 990-T, Exempt Organization Business Income Tax Return,

claiming a refund of $867,222 in income taxes. Petitioner's

claim was based on its assertion that the Fund was a tax-exempt

organization under section 501(c)(5). The information listed on

the 1991 Form 990-T included petitioner's name, address, and

employer identification number and its claim that it was entitled

to a $867,222 refund for "ERRONEOUS WITHHOLDING". On or about

April 15, 1993, respondent refunded to petitioner the $867,222

amount that had been withheld for 1991.

On April 28, 1995, petitioner submitted to respondent a 1993

Form 990-T, claiming a refund of $606,120 in income taxes. 

Petitioner's claim was based on its assertion that the Fund was a

tax-exempt organization under section 501(c)(5). The information

listed on the 1993 Form 990-T included petitioner's name,
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1 Although the Fund did file claims for refunds for both

years on Form 990-T, the parties agree that these claims are not

"returns" for purposes of sec. 6501(a). See MNOPF Trustees Ltd.

v. United States, 123 F.3d 1460 (Fed. Cir. 1997).

address, and employer identification number and its claim that it

was entitled to a $606,120 refund for "ERRONEOUS WITHHOLDING". 

On or about August 24, 1995, respondent refunded to petitioner

the $606,120 amount that had been withheld for 1993.

The Fund did not file a 1991 or 1993 Federal income tax

return.1 For those years, the Fund did not have any U.S. source

income subject to tax, other than the dividends mentioned above.

Petitioner concedes that the Fund was not a tax-exempt

entity during the subject years.

Discussion

The facts of this case are virtually identical with the

facts of ICI Pension Fund v. Commissioner, 112 T.C. (1999),

an Opinion filed today. Counsel in this case is the same counsel

who appeared in ICI Pension Fund. In the instant case,

petitioner's counsel has made the same arguments as he made in

ICI Pension Fund. We considered all these arguments in ICI

Pension Fund, and we rejected them for the reasons stated

therein. We held in ICI Pension Fund that the Commissioner

issued the deficiency notices to the taxpayer within the

limitation period set forth in section 6501. We hold the same

here. To reflect this holding,
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An order will be issued

granting respondent's motion for

partial summary judgment and

denying petitioner's motion for

summary judgment.