EVANS, Circuit Judge
(after stating the facts as above).
The precise question presented by the record before us may bo stated thus: Should the petitioner be chargeable with the tax duo upon the Julius Haag share of the net income of the Haag Drug Company earned in 1922, after tiro death of Julius? No question is involved as to the correctness of the amount of the Haag Drug Company’s net income for 1922, nor is it denied that a tax was due the Government thereon.
Petitioner contends that she never was a member of the copartnership of Haag Drug Company and was not chargeable with the tax on one-halt' of the income of said company earned in 1922, after Julius’s death. Respondent meets these contentions by asserting (a) that petitioner is estopped to deny membership in the partnership and (b) that she has failed to show that she was not a member of the partnership during 1922, after her brother died.
Estoppel. Petitioner’s return for the year 1922, was filed ten months after the death of Julius Haag. In this return petitioner listed $2,445.45 as income from the partnership of Haag Drag Company, 114 North Pennsylvania Street, Indianapolis, Indiana. The Haag Drag Company made a partnership return listing petitioner and giving her address under the heading- “Name and Address of each Partner.” Her interest was stated to be one-fourth for seven and one-half months. Both the petitioner and the partnership made like representations in their income tax returns for the year 1923. Respondent accepted this statement of petitioner’s status as a member of the partnership and confined its investigation to the correctness of the earnings of the partnership for the year 1922. The determination was made February 19, 1927. Not until this determination was made did petitioner deny membership in tlie partnership. In the meantime the period of limitation for assessment and collection of the 1922 taxes had expired, and it was too late for respondent to assess tlie tax against the estate.
Both precedent and the principles underlying the doctrine of estoppel support respondent’s position. Rockwood v. United States (Ct. Cl.) 38 F.(2d) 707; McDonald Coal Co. v. Heiner (D. C.) 9 F.(2d) 992, affirmed McDonald Coal Co. v. Lewellyn (C. C. A.) 16 F.(2d) 274; Illinois Central R. R. Co. v. Commonwealth, 128 Ky. 268, 108 S. W. 245, affirmed 218 U. S. 551, 31 S. Ct. 95, 54 L. Ed. 1147; Union School District v. Bishop, 76 Conn. 695, 58 A. 13, 66 L. R. A. 989; Central Pacific Railroad v. California, 162 U. S. 91, 16 S. Ct. 766, 40 L. Ed. 903.
Having represented under oath to the Government that she was a member of the partnership and the Government having accepted her representation and acted accordingly, she can not be heard to deny that status after the time had passed for the Government to validly assess a tax against the estate. The soundness of this conclusion is fortified by the additional reason that, had a tax been assessed against the estate of the deceased brother, a part of the tax, equal to what petitioner must now pay, would have ultimately been deducted from her share of said estate.
The order of the Board of Tax Appeals is affirmed.
What follows is an opinion from a United States Court of Appeals. You will be asked a question pertaining to issues that may appear in civil law issues involving government actors. The issue is: "Did the court conclude that it should defer to agency discretion? For example, if the action was committed to agency discretion. Answer the question based on the directionality of the appeals court decision. If the court discussed the issue in its opinion and answered the related question in the affirmative, answer "Yes". If the issue was discussed and the opinion answered the question negatively, answer "No". If the opinion considered the question but gave a mixed answer, supporting the respondent in part and supporting the appellant in part, answer "Mixed answer". If the opinion does not discuss the issue, or notes that a particular issue was raised by one of the litigants but the court dismissed the issue as frivolous or trivial or not worthy of discussion for some other reason, answer "Issue not discussed". If the opinion considered the question but gave a "mixed" answer, supporting the respondent in part and supporting the appellant in part (or if two issues treated separately by the court both fell within the area covered by one question and the court answered one question affirmatively and one negatively), answer "Mixed answer". If the opinion either did not consider or discuss the issue at all or if the opinion indicates that this issue was not worthy of consideration by the court of appeals even though it was discussed by the lower court or was raised in one of the briefs, answer "Issue not discussed".