The opinion of the court was delivered by: LEVET
On the 13th day of March, 1956, the United States Internal Revenue Service served upon Norda Essential Oil and Chemical Company, Inc. (hereinafter called 'Norda') by registered mail a formal ninety-day notice of 'deficiency' of income tax liability for the taxable year ending 1952. This tax determination was appealed to the Tax Court of the United States on April 18, 1956. The notice of deficiency was issued under the authority of Section 6212(a) of the Internal Revenue Code, 26 U.S.C.A. § 6212(a).
In its 1952 return, Norda claimed as a deduction depreciation in the total amount of $ 107,145.12.
On April 19, 1955, a Commissioner's summons was issued to petitioner to produce:
(1) Voucher registers and cash receipts and disbursements books for the years 1950 and 1951.
(2) Paid invoices and cancelled checks representing acquisitions to 'Trucks,' 'Equipment,' and 'Construction Machinery' accounts during the years 1950 and 1951 as set forth in Schedule I of the 1952 corporation income tax return.
(3) All paid vouchers representing plant, machinery or equipment leased to or otherwise provided for or to Fruit Industries of Bradenton, Florida.
These books and records demanded in the above-mentioned summons related to the purchase of assets in 1950 and 1951 on which depreciation was being claimed in the 1952 returns.
Petitioner, Norda, refused to comply with the summons, and an ex parte order to enforce the summons was obtained from the United States District Court for the Southern District of New York on application of the special agent in charge of the investigation of petitioner's 1952 return.
A motion by petitioner to vacate the ex parte order was denied by Judge Dawson of this Court on May 25, 1955; on March 7, 1956, the Circuit Court of Appeals, Second Circuit, Norda Essential Oil & Chemical Co. v. United States, 230 F.2d 764, affirmed this decision; on June 4, 1956, the Supreme Court of the United States denied certiorari, 351 U.S. 964, 76 S. Ct. 1028.
The petitioner contends that the issuance of the notice of deficiency of March 13, 1956, pursuant to Section 6212 of the Internal Revenue Code of 1954 suspends the Commissioner's power to examine relevant books and records of a taxpayer.
Section 6212 of the Internal Revenue Code of 1954 reads in part as follows:
'(a) In General. -- If the Secretary or his delegate determines that there is a deficiency in respect of any tax imposed by subtitles A or B, he is authorized to send notice of such deficiency to the taxpayer by registered mail.
'(c) Further deficiency letters ...