Union Commerce Bank v. U.S., 79-3414

• Decision Date: 22 January 1981
• Docket Number: No. 79-3414,79-3414
• Citation: 638 F.2d 962
• Parties: 81-1 USTC P 13,390 UNION COMMERCE BANK, Executor of the Estate of Freeman Smith, Deceased, Plaintiff-Appellant, v. UNITED STATES of America, Defendant-Appellee.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 962

638 F.2d 962

81-1 USTC P 13,390

UNION COMMERCE BANK, Executor of the Estate of Freeman

Smith, Deceased, Plaintiff-Appellant, v. UNITED STATES of America, Defendant-Appellee.

No. 79-3414.

United States Court of Appeals, Sixth Circuit.

Argued Dec. 18, 1980.

Decided Jan. 22, 1981.

Terrence O'Donnell, Richard A. Lesco, Marshman, Snyder & Corrigan, Cleveland, Ohio, for plaintiff-appellant.

Jerome Fink, M. Carr Ferguson, Gilbert E. Andrews, Grant W. Wiprud, Philip Brennan, Tax Division, Dept. of Justice, Washington, D. C., Frederick M. Coleman, U. S. Atty., Cleveland, Ohio, for defendant-appellee.

Before WEICK and MARTIN, Circuit Judges, and NIXON, District Judge. ^*

PER CURIAM.

Union Commerce Bank, as executor of the estate of Freeman A. Smith, appeals from the judgment of the District Court partially dismissing its complaint seeking a refund of federal estate taxes for failure to comply with the statute of limitations set forth in 26 U.S.C. § 6532(a). The decision of the District Court is reported in 463 F.Supp. 842 (1978).

After the Bank filed a federal estate tax return and paid the tax due reported therein, the Internal Revenue Service issued a notice asserting a deficiency of $20,531.27, which the Bank paid on April 28, 1972. On September 15, 1972, the Bank filed a claim for a refund of estate tax in the amount of $20,531.27 plus interest, which stated: "This claim is made solely for the purpose of fulfilling the necessary requirements to gain access to Federal District Court." On May 21, 1973, the Bank was notified that its claim was disallowed because of "an Audit decision" and that the Bank had two years from that date to bring suit for a refund. On April 25, 1974, the Bank filed an amended claim with the Service seeking a refund of $22,566.05 in estate taxes plus interest. This claim again placed in issue the $20,531.27 sought in the first claim for a refund, and further requested a refund of $2,034.78 because of additional attorney's and executor's fees paid by the estate. On April 7, 1975, the Service disallowed the amended claim, for reasons stated in a report attached to a prior thirty-day letter. The notice again stated that the Bank had two years from the date of the notice to file suit for a refund. The Bank filed this suit for a refund of $22,566.05 on November 20, 1975, more than two years after the disallowance of its first claim but within two years of the disallowance of the amended claim. The District Court held that...