Wilmington Trust Co. v. United States , 59 F.2d 831 ( 1932 )

GREEN, Judge.

The Wilmington Trust Company is the administrator, with the will annexed, of the estate of Hamilton M. Barksdale, deceased, and seeks to recover interest Tinder section 1019 oí the Revenue Act of June 2,1924 (26 TJSCA $ 153 note) on $21,918.43, being the amount of an overpayment by the estate in respeet of its income for the taxable period October 18 to December 31, 1918, subsequent to Barksdale’s death; $20,843.42 of this overpayment was credited by the Commissioner against a part of a deficiency for 1915. The balance of $1,075.01 was refunded by Treasury check dated September 11, 1924.

Plaintiff bases its claim on the allegation that the credit and refund were allowed within the meaning of the Revenue Acts on August 28, 1924, when the Commissioner re-listed the amounts on a “supplemental” schedule of refunds and credits after this item, numbered 5, had been “deleted” from a previous schedule of refunds and credits containing entries with respeet to overpay-ments by a number of taxpayers which had ■been approved by the Commissioner May 27, 1924. Inasmuch as the date, August 28,1924, was after the expiration of the period of limitation within which the Commissioner could legally allow an overpayment for the taxable period October 18 to December 31, 1918, and credit or refund the same, plaintiff contends that the claim for credit filed March 9, 1922, was sufficient authority for the Commissioner’s allowance beyond the statute of limitation and that the Commissioner in fact allowed the credit and refund for this taxable period on the basis of the claim for credit filed.

Counsel for the defendant resist plaintiffs claim for interest on the grounds, first, that the claim for credit filed March 9, 1922, was not a claim for credit for the taxable period October 18 to December 31, 1918, inasmuch as it made no mention whatever of any overpayment for this period; that the claim specifically and definitely related to an overpayment of $56,107.56 paid in installments on March 15, June 15, September 15, and December 15, 1919, and on July 30,1920, with respeet to the tax on the income of the decedent, Barksdale, for the period prior to his death, January 1 to October 18, 1918, and an overpayment of $47,832.58 on January 13, 1920, with respect to the tax on the income of the estate of Barksdale for the year 1919; second, that if the credit of $20,843.42 and the refund of $1,075.01 were allowed by the Commissioner on August 28, 1924, when he relisted these items on a supplemental schedule, such allowance was beyond the period of limitation within which he could allow a credit or refund without a claim and was there-l oro illegal, since the claim for credit filed by plaintiff was not a claim with respeet to the overpayment for the period October 18 to December 31,1918, on which interest is claimed.

We are of opinion that the defendant is correct in its contention that plaintiff filed no claim for credit with respect to the overpayment for the period October 18 to December 31,1918, on which interest is claimed. The claim for credit relied upon by plaintiff set forth that an additional tax of $108,155.-90 had been assessed for 1915 and claimed a credit against that amount of $103,940.14. The overpayments, for which credit was claimed, wore payments totaling $56,107.56 laado on March 15, June 15, September 15, and December 15,1919, and on July 30,1920, in respeet of the tax on the income of the decedent prior to Ms death for the period from January 1 to October 18, 1918, and the payment of $47,832.58 made January 13, 1920, with respeet to the tax on the income of the estate of Barksdale for the year 1919. No mention whatever was made by plaintiff in the claim with respeet to any overpayment for the taxable period October 18 to December 31, 1918, and the total amount claimed as a credit did not include any amount with respect to the tax paid for that period. The document filed therefore gave the plaintiff no greater rights with respect to any overpayment for the period ending December 31, 1918, than if the claim had not been made. When the claim for credit was received by the Commissioner serial number 332708 was placed thereon. In the course of his audits the Commissioner determined overassess-ments for the taxable period January 1 to October 18, 1918, the taxable period October 18 to December 31, 1918, and for the taxable year 1919. When the overassessments for the two taxable periods in 1918 were entered upon the schedule, of overassessments, approved February 8,1924, and upon the original and supplemental schedule of refunds and credits, the number placed by the Bureau on the claim for credit was entered in column 2 under the heading “Certificate of Overassessment or Claim Number.” Plaintiff insists, therefore, that, by placing the serial number of the claim filed opposite the overassessmont for the period October 18 to December 31, 1918. as shown on the schedule of overassess-ments, the Commissioner treated the claim filed as a claim for credit for the taxable period October 18 to December 31,1918. The contents of the claim filed, however, show very plainly that it had no reference to the period ending December 31, 1918, and the mere fact that in the preparation of the schedules the serial number given to the claim filed was entered on the schedules opposite the entry of the assessment for the period involved, as well as the overassessment for the period January 1 to October 18, 1918, for which the claim was filed, does not establish that the Commissioner treated it as a claim for the period ending December 31,1918, nor do we think that such a notation under the circumstances would be binding on the government, since the claim did not purport to be for the period October 18 to December 31, 1918.

In view of our conclusion that no claim for credit was filed with respect to the taxable period involved, it is not necessary to discuss the question whether the credit of $20,-843.42 and the refund of $1,075.01 were allowed on May 27,1924, when the Commissioner signed the original schedule of refunds and credits,-or on August 28,1924, when he signed a supplemental schedule. If the allowance was made May 27, 1924, the Revenue Act of 1921 was then in force, and no interest would be payable under section 1324 of that act (42 Stat. 316) unless a claim was filed therefor and allowed. If the allowance was made August 28, 1924, which was after the 1924 aet went into force, no interest may be recovered for the reason that on that date the allowance was barred by the statute of limitation.

The petition must be dismissed. It is so ordered.