The opinion of the court was delivered by: GODDARD
Cross-motions for summary judgment. The facts were stipulated.
Plaintiff corporation overpaid its income and declared value excess profits taxes for 1943 and 1944 in the sum of $ 174,298.72. By a Revenue Agent's report, dated March 15, 1951, sent to the taxpayer under date of April 20, 1951, the Internal Revenue Agent-in-charge proposed an overassessment of $ 174,298.72 for the years 1943 and 1944, and a deficiency in tax of $ 68,685.44 for 1945 and of $ 2,608,482.24 for 1946.
On March 7, 1951, the plaintiff executed Form 874, A Waiver of Restrictions on Assessment and Collection of Deficiency in Taxes, consenting to the assessment and collection of the proposed deficiencies and accepting the proposed overassessments as correct.
On May 10, 1951, plaintiff filed a claim for refund plus interest. On June 25, 1951, the Commissioner of Internal Revenue assessed the additional income taxes for 1945 and 1946 and, in a Statement of Income Tax Due, credited against these deficiencies the overpayments of tax for 1943 and 1944, including interest on the overpayments to April 8, 1951.
Plaintiff objected to the amount of interest allowed on the overpayments, claiming that interest was payable to June 25, 1951, the date of the additional assessment. The Commissioner rejected this claim and this suit is for that interest, in the amount of $ 2,160.25.
Plaintiff argues that Title 26 U.S.C.A. § 3771(b)(1) expressly requires the allowance of interest up to the date of the additional assessment. The government argues that, since Title 26 U.S.C.A. § 292(a) precludes the government from collecting interest beyond April 8, 1951, a date 30 days after the filing by plaintiff of the waiver above mentioned, no interest should accrue to plaintiff on the overpayments after April 8, during this period when the government is prevented from collecting interest on the overall net deficiency.
Applicable statutory provisions of Title 26 U.S.C.A. are:
' § 272. Procedure in general
'(a)(1) Petition to The Tax Court of the United States. 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. * * *
'(d) Waiver of restrictions. 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.'
' § 292. Interest on deficiencies
'(a) General rule. Interest upon the amount determined as a deficiency shall be assessed at the same time as the deficiency, shall be paid upon notice and demand from the collector, and shall be collected as a part of the tax, at the rate of 6 per centum per annum from the date prescribed for the payment of the tax * * * to the date the deficiency is assessed, or, in the case of a waiver under section 272(d), to the thirtieth day after the filing of such waiver or to the date the deficiency is assessed whichever is the earlier. * * *'
' § 3771. Interest on ...