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New York Trust Co. v. United States

February 8, 1937

NEW YORK TRUST CO.
v.
UNITED STATES



Appeal from the District Court of the United States for the Southern District of New York.

Author: Swan

Before MANTON, SWAN, and CHASE, Circuit Judges.

SWAN, Circuit Judge.

This suit seeks recovery of an overpayment of income taxes for 1917 paid by John C. Leslie, now deceased, of whose estate the New York Trust Company is executor. The respondent's motion to dismiss the petition for lack of jurisdiction was granted on the ground that no claim for refund of the overpayment sued for was filed within the time prescribed by statute as a condition precedent to maintenance of the suit. 26 U.S.C.A. ยงยง 1672-1673. The correctness of this ruling is the issue presented by the appeal.

From the petition and the affidavits and exhibits submitted upon the motion to dismiss, it appears that Leslie paid an income tax of $49,968.05 for the year 1917, the final payment thereof having been made in April, 1921. On October 13, 1921, he filed a timely claim for the refund of $338.29 "or such greater amount as may be legally refundable." The claim then proceeded to specify reasons for his demand, as follows:

Refund for 1917 due to Wife's in-

come being included in the cal-

culation of surtax, also deprecia-

tion not taken on the original

return $136.86

Refund for 1918 due to reduction

of taxable L. B. Int. also de-

preciation not taken on original

return ...


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