CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT.
Warren, Black, Frankfurter, Douglas, Clark, Harlan, Brennan, Whittaker, Stewart
MR. JUSTICE HARLAN delivered the opinion of the Court.
The United States brought this action against the respondent taxpayer for the collection of a deficiency in taxes for the year 1946, and statutory interest thereon. The respondent defended on the ground that the action could not be maintained because the Commissioner of Internal Revenue had never issued to the taxpayer a notice of deficiency (commonly known as a "90-day letter") for the amount in question. This defense was based on § 272 (a)(1) of the Internal Revenue Code of 1939, 53 Stat. 82,
as amended, providing in pertinent part as follows:
"If in the case of any taxpayer, the Commissioner determines that there is a deficiency in respect of the tax imposed by this chapter, the Commissioner is authorized to send notice of such deficiency to the taxpayer by registered mail. Within ninety days after such notice is mailed . . . the taxpayer may file a petition with the Tax Court of the United States for a redetermination of the deficiency. No assessment of a deficiency in respect of the tax imposed by this chapter and no distraint or proceeding in court for its collection shall be made, begun, or prosecuted until such notice has been mailed to the taxpayer, nor until the expiration of such ninety-day period, nor, if a petition has been filed with the Tax Court, until the decision of the Tax Court has become final. . . ."
The Government relied on the admitted fact that respondent had executed a Treasury Department form waiving the restrictions on assessment and collection of the deficiency sued for,*fn1 and on § 272 (d) of the 1939 Code, 53 Stat. 83, said to authorize such a waiver, which provides:
"The taxpayer shall at any time have the right, by a signed notice in writing filed with the Commissioner,
to waive the restrictions provided in subsection (a) of this section on the assessment and collection of the whole or any part of the deficiency."
The District Court held that the waiver was not effective because a 90-day letter had not been issued, and that § 272 (a) therefore barred the action. The Court of Appeals affirmed, 263 F.2d 382, and in view of contrary decisions in the First and Sixth Circuits,*fn2 we granted certiorari. 359 U.S. 988. For reasons hereafter stated we think the court below was in error.
We start with the language of § 272 (d). By its terms, the right of waiver is to be available "at any time," and is applicable to "the restrictions" contained in § 272 (a). Those restrictions include the prohibitions on assessment and collection of a deficiency prior to the mailing of a 90-day letter, no less than the same prohibitions relating to the period following the issuance of such a letter during ...