decided: September 4, 1953.
Before CHASE, CLARK and FRANK, Circuit Judges.
FRANK, Circuit Judge.
The facts are set forth in the opinions of the referee in bankruptcy and of the district judge, both reported in 103 F.Supp. 351. It there appears that, on February 8, 1950, when the United States, by sheer inadvertence, paid the trustee in bankruptcy refunds of taxes in the amount of $35,373.43, the United States had on file in the bankruptcy proceedings a proof of claim, timely filed, for taxes on which there was owing $24,383.71.*fn1 This proof of claim stated that there were "no set-offs or counterclaims." Admittedly, the government could then have stated the actual facts. It did not do so until March 1951. Its statement at that time was the equivalent of an amendment, of its proof of claim, made after the expiration of the statutory period for the filing of claims.
The question, then, is whether such an amendment is valid. Our recent opinion in Rumsey Manufacturing Corp. v. United States, 2 Cir., 206 F.2d 565, serves to answer this question in the affirmative. For here no one changed his position to his detriment in reliance on the previous failure to state the facts.*fn2 Indeed, here the justification for permitting the amendment is even stronger than in the Rumsey case, for here all parties concede the claimant's inadvertence.*fn3 The allowance of an amendment in the circumstances does not turn on the fact that the claimant is the United States.
CLARK, Circuit Judge, concurring in the result.