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October 13, 1932


The opinion of the court was delivered by: KNIGHT

KNIGHT,District Judge.

On Reargument.

The request for the reopening of this case to permit plaintiff to file a brief was granted. After reconsideration of the questions involved, I find no reason to change the opinion heretofore rendered.

 The tax in question was collected within the statutory limitation period of six years. Plaintiff filed its claim for a refund on the sole ground that the statute of limitations had run when the warrant of distraint was served. Plaintiff's right to maintain this action is dependent upon the filing of a "claim for refund * * * according to the provisions of law in that regard, and the regulations of the Secretary of the Treasury established in pursuance thereof. * * *" Section 1113 (a), Revenue Act 1926 (26 USCA ยง 156). Treasury Decision 4265 specifies the form of the claim. In the eighth paragraph of the petition herein plaintiff sets forth the filing of his claim for refund upon the ground above stated. It appearing that the tax in question was collected within the time fixed by law, a petition based on a claim for "refund" of such tax can not be sustained.

 Petitioner asserts that the claim for refund was amended to include a claim on account of an erroneous assessment, and that such amendment was accepted and considered by the Commissioner of Internal Revenue. Under Treasury Decision 4265, the letter, which petitioner claims is in effect an amended claim, is wholly insufficient. It neither meets the particulars required to be set forth by the Treasury Decision nor was it under oath as required. I find nothing in the record to sustain petitioner's contention that the amended claim was accepted and considered.

 Assuming, however, that the petitioner could bring an action to recover moneys paid on account of an erroneous assessment, such action could not be sustained upon the facts disclosed in this record. When this tax was collected under duress of a warrant of distraint, proceedings were pending to compel the petitioner to pay an additional income tax for 1920. That proceeding in no way involved the question of the validity of the tax controverted here. Following the decision of the Board of Tax Appeals, the commissioner deducted from the additional tax, for which petitioner was liable for 1920, the overpayment for 1918. Such overpayment is the amount which it is claimed the commissioner had theretofore allowed in reduction of the 1920 tax. The final result has been that petitioner has paid only the tax which he was liable to pay. The order of payment should not be used as a means to defeat the tax liability. If it is said that the collector was not authorized to issue the warrant, petitioner was in no wise harmed by it. The reasoning in Lewis v. Reynolds, 284 U.S. 281, 52 S. Ct. 145, 76 L. Ed. 293, is in point here. See, also, Champ Spring Co. v. U.S. (C.C.A.) 47 F.2d 1; New York Life Insurance Co. v. Anderson, Collector (C.C.A.) 263 F. 527.

 I find nothing in the cases cited by the plaintiff which authorizes any different conclusion. With the statement in Tucker v. Alexander, 275 U.S. 228, 48 S. Ct. 45, 72 L. Ed. 253, the statutes and regulations of the Treasury Department with respect to claims for refund were devised not as traps for the unwary, no one could fail to be in accord. With the declaration in Grays Harbor Motorship Corp. v. U.S. (Ct. Cl.) 45 F.2d 259, 281, that compliance with statutory requirements with regard to filing claims for refund is a condition precedent to the right to maintain suit therefor and that the claim itself must specifically state the ground upon which a refund is asked, there certainly could be no disagreement. Bowers v. N.Y. & Albany Lighterage Co., 273 U.S. 346, 47 S. Ct. 389, 71 L. Ed. 676, is authority for the proposition that the word "proceeding," as used in section 250 (d), Revenue Act 1921, refers to proceedings out of, as well as in, court, and means more than "suit." Peerless Woolen Mills v. Rose (C.C.A.) 28 F.2d 661, is an authority that in proceedings to determine deficiency assessments the Board of Tax Appeals has power to fix the amount of an overpayment, where it found there was no deficiency. It will be seen that this holding has no application here. In Troy Motor Sales Co. v. Commissioner of Internal Revenue, 14 B.T.A. 546, the questions of the statute of limitations, the power of the Board of Tax Appeals to determine whether collection was barred, and the liability for the payment of certain taxes under various provisions of the statute, were involved. There is nothing in the case controlling here.

 For the reasons herein and heretofore assigned, the complaint should be dismissed.


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