1981 U.S. Tax Ct. LEXIS 22">*22 The issuance of a notice of deficiency to a corporation within 3 years after its dissolution is an "action or other proceeding" under
77 T.C. 1194">*1194 OPINION
This motion was assigned to and heard by Special Trial Judge Fred S. Gilbert, Jr., pursuant to the 77 T.C. 1194">*1195 provisions of
OPINION OF THE SPECIAL TRIAL JUDGE
Gilbert,
Respondent determined a deficiency in petitioner's Federal income tax for the period ending January 31, 1978, in the amount of $ 239,438. 1981 U.S. Tax Ct. LEXIS 22">*24 Respondent also imposed an addition to tax, under section 6651(a), in the amount of $ 59,859.50.
Petitioner, the Bared & Cobo Co., Inc., was a corporation which was organized and existed under the laws of Florida. The corporation was dissolved on or about February 1, 1978.
Copies of the statutory notice of deficiency dated January 27, 1981, were mailed to the corporation in care of Jose Bared, Jose Cobo, and Howard Freidin. Bared and Cobo were officers of the corporation, and Freidin was its attorney. Bared, Cobo, and Freidin each filed a petition with the Court contesting the entire amount of the deficiency and the addition to tax. The petitions were filed on April 27, 1981, April 20, 1981, and April 24, 1981, respectively. The three cases thus initiated have not been consolidated, but respondent's motions to dismiss them will be discussed together because the issues involved are identical.
Respondent has filed motions to dismiss each of the three cases for lack of jurisdiction. These motions are based upon respondent's conclusion that, under Florida law, the authority of Bared, Cobo, and Freidin to defend the dissolved corporation against claims expired before their petitions1981 U.S. Tax Ct. LEXIS 22">*25 were filed, and that, as a result, the petitions were not filed by proper parties.
607.297 Survival of remedy after dissolution
The dissolution of a corporation * * *
* * * *
shall not take away or impair any remedy available to or against such corporation, or its directors, officers, or shareholders for any right or claim existing, or any liability incurred, prior to such dissolution if action or other proceeding thereon is commenced within 3 years after the date of such dissolution.
The question is, therefore, whether an "action or other proceeding" was commenced within 3 years of the dissolution of the corporation, preserving its remedies under Florida law. Respondent argues that the proceedings in these cases were commenced with the filing of the petitions, which occured more than 3 years after the date of dissolution. Petitioner argues that the proceedings were 1981 U.S. Tax Ct. LEXIS 22">*26 commenced with the mailing of the statutory notices of deficiency, which occurred less than 3 years after the dissolution of the corporation. We agree with petitioner.
The case of
Accordingly, respondent's motions will be denied.
1. Cases of the following petitioners will be discussed herewith: The Bared & Cobo Co., Inc., in care of Howard Freidin, docket No. 8350-81; and The Bared & Cobo Co., Inc., in care of Jose Bared, Trustee, docket No. 8632-81.↩
2. All section references are to the Internal Revenue Code of 1954, as amended, unless otherwise indicated.↩
3. Since this is a pretrial motion, the Court has concluded that the post-trial procedures of