May Broadcasting Co. v. Commissioner

Atkins, J.,

concurring: Here the petitioner filed its return for 1942 on March 15, 1943, and paid a substantial portion of its excess profits tax on October 13, 1944. On November 30, 1944, it filed an application for relief and refund pursuant to section 722 of the Internal Revenue Code of 1939. The claim was disallowed in part on February 23, 1954, and from such disallowance the petitioner filed a petition with this Court. In such situation, section 732 provides, the disallowance shall be deemed a notice of deficiency for all purposes relating to the assessment and collection of taxes or the refund or credit of overpayments.

In the application for relief the. petitioner set forth as grounds for refund only those peculiar to the application of section 722. However, in its petition to this Court the petitioner raised an entirely different issue, namely, whether its invested capital should be increased. The parties have stipulated that “[i]f petitioner filed a timely claim for refund of 1942 excess profits tax based on its finally determined invested capital, it would have been entitled to a refund based upon the use of equity invested capital in the amount of $412,231.91.”

Even though, as held by several circuit Courts of Appeals, we may have jurisdiction to consider the separate issue relating to invested capital and to find an overpayment based thereon, our duty does not stop there.¹ The general statute of limitations on refunds is set forth in section 322(b) of the Code and the effect of section 322(d) is to make the same general principles applicable to the refund of overpayments found by us. Thus, section 322(d) states that if this Court finds that there has been an overpayment, no credit or refund shall be made of any portion of the tax unless this Court determines as part of its decision that such portion was paid:

(A) within two years before the filing of the claim, the mailing of the notice of deficiency, or the execution of an agreement by both the Commissioner and the taxpayer pursuant to section 276(b) to extend beyond the time prescribed in section 275 the time within which the Commissioner might assess the tax, whichever is earliest, or (B) within three years before the filing of the claim, the mailing of the notice of deficiency, or the execution of the agreement, whichever is earliest, if the claim was filed, the notice of deficiency mailed, or the agreement executed within three years from the time the return was filed by the taxpayer * * *

There was no agreement pursuant to section 276(b) and it is clear that the tax was not paid within either 2 or 3 years before the mailing of the notice of deficiency (namely, the rejection of the claim). Thus, we are concerned only with the claim for refund — and the question is whether such claim based upon the limited grounds relating to section 722 relief, was sufficient to suspend the running of the statute of limitations against refund based upon other grounds.

It is well established by Supreme Court authority, as stated in the majority opinion, that no refund may be made pursuant to a claim unless such claim was timely filed and then only upon the grounds stated in such timely filed claim. A claim asserting one or more specific grounds may not be amended after the expiration of the statute of limitations prescribed with respect to refund claims so as to assert a new or unrelated ground. In addition to the cases cited in the majority opinion, see United States v. Henry Prentiss & Co., 288 U.S. 73. Therefore, the application for relief was a valid claim for refund only to the extent of the grounds asserted therein, namely, matters peculiar to section 722, and was not a valid claim for refund of any overpayment based upon an increase in its invested capital. Refund of any overpayment based upon such ground was barred by the time the issue was raised before this Court. Accordingly, we cannot determine as part of our decision that payment was made within the time prescribed in section 322(d). Such a determination would be tantamount to a holding that refund is not barred.

Our opinion in H. Fendrich, Inc., 25 T.C. 262, thoroughly discusses the problem in the light of the statutory history and it is my opinion that it clearly demonstrates that Congress did not intend to abrogate the usual statute of limitations on refunds in cases coming before us on the disallowance of a section 722 claim. With all due deference to the Court of Appeals for the Seventh Circuit which reversed our decision in the Fendrich case, I think we should adhere to our opinion in that case.

HakRON and TbetjeNS, //., agree with this concurring opinion.

1 Prior to the Revenue Act of 1934 the extent of our power and duty was to merely find whether there had been an overpayment, and the Commissioner then determined whether the overpayment was barred by the statute of limitations, with a right in the taxpayer to further proceedings in other courts. The provisions of section 322(d) were added to the Code specifically to enlarge the Jurisdiction of this Court “by giving It authority to decide the limitation question.” H. Rept. No. 704, 73d Cong., 2d Sess., 1939-1 (Part 2) C.B. 581. S. Rept. No. 558, 73d Cong., 2d Sess., 1939-1 (Part 2) C.B. 620.