Busser v. United States, No. 8006.

CourtUnited States Courts of Appeals. United States Court of Appeals (3rd Circuit)
Writing for the CourtGOODRICH, Circuit , and SMITH and LEAHY
Citation130 F.2d 537
Docket NumberNo. 8006.
Decision Date28 August 1942
PartiesBUSSER v. UNITED STATES.

130 F.2d 537 (1942)

BUSSER
v.
UNITED STATES.

No. 8006.

Circuit Court of Appeals, Third Circuit.

Argued July 16, 1942.

Decided August 28, 1942.

Rehearing Denied September 21, 1942.


130 F.2d 538

Richard S. Salant, of Washington, D. C. (Samuel O. Clark, Jr., Asst. Atty. Gen., Sewall Key, Sp. Asst. to the Atty. Gen., and Gerald A. Gleeson, U. S. Atty., and Thomas J. Curtin, Asst. U. S. Atty., both of Philadelphia, Pa., on the brief), for appellant.

Charles Myers, of Philadelphia, Pa. (Kenneth W. Gemmill and Barnes, Dechert, Price & Smith, all of Philadelphia, Pa., on the brief), for appellee.

Before GOODRICH, Circuit Judge, and SMITH and LEAHY, District Judges.

GOODRICH, Circuit Judge.

The question involved in this appeal is the liability of the United States for interest on the refunded amount of an alleged overpayment of an estate tax. The facts are simple; it is the legal conclusion from them which is the subject of controversy. The decedent, a resident of Germany, died June 2, 1937. The federal estate tax return was due on September 2, 1938; likewise the tax.1 Philip Price, substituted trustee under deed of trust from the decedent, received on August 30, 1938, a letter from the Collector, enclosing form for federal estate tax return. On the same day, he requested a 30 day extension of time to file a return; the Collector granted the request August 31, 1938. On August 31, 1938, Mr. Price sent to the Collector2 a check for $6,800, his letter requesting that he "apply this on account of the tax in the above estate ultimately shown to be due by the Estate Tax Return when filed." October 3, 1938, the plaintiff filed the estate tax return with the Collector, showing a tax liability of $5,000.49, for which a receipt was sent by the Collector on October 6. The plaintiff filed a claim for refund of $1799.51 October 3, 1940,3 this being the amount by which the check sent on August 31, 1938, exceeded the tax liability. The Collector sent a receipt covering this amount on November 2, 1940; a check for $1799.51 dated on or about February 24, 1941, was received by the taxpayer on March 25, 1941. The taxpayer brought suit in April, 1941, to recover interest upon $1799.51 at 6% from September 1, 1938 until the date of payment. The court below gave judgment for the plaintiff, and this appeal followed.

The question turns upon the application of an appropriate statute for the sovereign is not liable for interest unless there is a statutory requirement or a contract to pay it. Tillson v. United States, 1879, 100 U.S. 43, 25 L.Ed. 543; United States v. North Carolina, 1890, 136 U.S. 211, 10 S.Ct. 920, 34 L.Ed. 336. The applicable statute provides that "Interest shall be * * * paid upon any overpayment in respect of any internal-revenue tax, at the rate of 6 per centum per annum, * * *."4 The key word in the sentence is obviously "overpayment". Under the circumstances here stated, did the taxpayer make an overpayment of the estate tax of his decedent? There is an almost irresistible tendency to drift into mere logomachy in discussing such a question and the parties have not escaped it here. Counsel for the government avoids the use of the term payment as though it were taboo; and speaks of the remittance as a "deposit".5 The taxpayer, in turn, reproduces portions of the correspondence between his lawyer and...

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34 practice notes
  • United States v. 15.3 ACRES OF LAND, ETC., Civ. A. No. 5051.
    • United States
    • United States District Courts. 3th Circuit. United States District Court of Middle District of Pennsylvania
    • August 15, 1957
    ...v. Waymire, supra, 202 F.2d at pages 553-554. A conclusion of law must have a proper legal basis. Busser v. United States, 3 Cir., 1942, 130 F.2d 537, at page 539; Duquesne Club v. Bell, 3 Cir., 1942, 127 F.2d 363, at page 365, 143 A.L.R. 1377. Likewise as to the mixed question of law and f......
  • Girard Trust Bank v. United States, No. 45-78.
    • United States
    • Court of Federal Claims
    • July 18, 1979
    ...of limitations and statutory interest purposes. Rosenman v. United States, supra; Ameel v. United States, supra; Busser v. United States, 130 F.2d 537 (3d Cir. Once a deficiency assessment is disputed and it is established that an overpayment of the estate taxes has been made by a taxpayer,......
  • Ewing v. U.S., No. 89-1756
    • United States
    • United States Courts of Appeals. United States Court of Appeals (4th Circuit)
    • December 10, 1990
    ...deficiencies. 11 In Hill, the Third Circuit said: In our view the problem involved is a simple one. We said in Busser v. United States, 130 F.2d 537, 539 (3d Cir.1942), that the common use of the term "payment" in both laymen's language and lawyers' language explains it as "something given ......
  • Budd Company v. United States, Civ. A. No. 15476.
    • United States
    • United States District Courts. 3th Circuit. United States District Court (Eastern District of Pennsylvania)
    • February 20, 1957
    ...a result consistent with the holding of the Rosenman case on an analogous factual situation. See Busser v. United States, 3 Cir., 1942, 130 F.2d 537.27 Plaintiff may submit an appropriate order for the entry of judgment in accordance with the foregoing Findings of Fact, Conclusions of Law a......
  • Request a trial to view additional results
34 cases
  • United States v. 15.3 ACRES OF LAND, ETC., Civ. A. No. 5051.
    • United States
    • United States District Courts. 3th Circuit. United States District Court of Middle District of Pennsylvania
    • August 15, 1957
    ...v. Waymire, supra, 202 F.2d at pages 553-554. A conclusion of law must have a proper legal basis. Busser v. United States, 3 Cir., 1942, 130 F.2d 537, at page 539; Duquesne Club v. Bell, 3 Cir., 1942, 127 F.2d 363, at page 365, 143 A.L.R. 1377. Likewise as to the mixed question of law and f......
  • Girard Trust Bank v. United States, No. 45-78.
    • United States
    • Court of Federal Claims
    • July 18, 1979
    ...of limitations and statutory interest purposes. Rosenman v. United States, supra; Ameel v. United States, supra; Busser v. United States, 130 F.2d 537 (3d Cir. Once a deficiency assessment is disputed and it is established that an overpayment of the estate taxes has been made by a taxpayer,......
  • Ewing v. U.S., No. 89-1756
    • United States
    • United States Courts of Appeals. United States Court of Appeals (4th Circuit)
    • December 10, 1990
    ...deficiencies. 11 In Hill, the Third Circuit said: In our view the problem involved is a simple one. We said in Busser v. United States, 130 F.2d 537, 539 (3d Cir.1942), that the common use of the term "payment" in both laymen's language and lawyers' language explains it as "something given ......
  • Budd Company v. United States, Civ. A. No. 15476.
    • United States
    • United States District Courts. 3th Circuit. United States District Court (Eastern District of Pennsylvania)
    • February 20, 1957
    ...a result consistent with the holding of the Rosenman case on an analogous factual situation. See Busser v. United States, 3 Cir., 1942, 130 F.2d 537.27 Plaintiff may submit an appropriate order for the entry of judgment in accordance with the foregoing Findings of Fact, Conclusions of Law a......
  • Request a trial to view additional results

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