Carmack v. Scofield, 14068.
| Decision Date | 29 January 1953 |
| Docket Number | No. 14068.,14068. |
| Parties | CARMACK et al. v. SCOFIELD. |
| Court | U.S. Court of Appeals — Fifth Circuit |
Muckleroy McDonald, San Antonio, Tex., for appellants.
S. Dee Hanson, Ellis N. Slack, Sp. Assts. to Atty. Gen., Charles S. Lyon, Asst. Atty. Gen., C. F. Herring, U. S. Atty., San Antonio, Tex., Thomas James, Asst. U. S. Atty., San Antonio, Tex., for appellee.
Before HOLMES, RUSSELL, and STRUM, Circuit Judges.
The question presented by this appeal is whether an amended claim for refund filed with the Commissioner of Internal Revenue seeking a refund of income tax paid by appellants as additional income tax for the year 1944, contained the same grounds for recovery as appellants asserted upon trial of a suit for refund, filed pursuant to § 3772(a)(1) of the Internal Revenue Code, 26 U.S.C.A. § 3772(a)(1).
Appellants, hereinafter referred to as taxpayers, filed amended joint income tax returns for the years 1944 and 1945, in which they reported as income for those years "poker winnings" in the amounts of $5,000 and $6,500, respectively, and paid the additional tax shown to be due thereon. The amended return for the year 1944 was accepted as filed, but an additional deficiency was proposed by the Commissioner for the year 1945, based upon taxpayers' increase in net worth during that year. Taxpayers resisted the proposed additional assessment for 1945, and petitioned the Tax Court for a redetermination. The Tax Court sustained the Commissioner's finding in part; held that taxpayers had grossly understated their income for 1945, and assessed a deficiency in tax accordingly. This Court affirmed the judgment of the Tax Court. Carmack v. Commissioner, 5 Cir., 183 F.2d 1. The Supreme Court denied certiorari. 340 U.S. 875, 71 S.Ct. 121, 95 L.Ed. 636.
During the pendency of the litigation concerning their 1945 income tax liability, taxpayers filed a claim for refund in reference to the additional tax paid for 1944 upon their amended return. The claim merely recited the facts that: taxpayers had not reported any income from poker winnings on their original return for 1944, but had reported such income on their amended return; that the Commissioner had computed their 1945 income on the basis of increase in net worth during that year; that the Commissioner had refused to consider the $5,000 as an asset on hand January 1, 1945, and that the claim was being filed solely for the purpose of tolling the limitations for filing such claim. An amended claim for refund was filed on November 15, 1949, which was substantially identical to the original claim, except that it included an additional sum as interest paid, summarized taxpayers' efforts to obtain relief from the proposed additional assessment for 1945, and stated that the $5,000 additional income reported on the amended 1944 income tax return was held by the taxpayers in the form of cash on December 31, 1944.
On April 25, 1951, more than six months having expired since the date the amended claim for refund was filed,1 taxpayers instituted this action, alleging, in addition to the facts stated above, that since the Commissioner and the Courts have held that they did not have any cash in their possession on January 1, 1945, and thereby taxed them on an amount of income greater by $5,000 than their actual income for 1945, "they have a better right to recover the additional tax paid for the year 1944 than the defendant has to retain it." In answer, appellee admitted substantially all the facts alleged in the complaint, but denied that taxpayers had alleged in their claims that the Commissioner and the Tax Court had held that they did not have any cash in their possession on January 1, 1945, and denied that taxpayers were entitled to recovery of the additional tax paid for 1944.
The case was called for trial before the Court and a jury. In response to the Court's inquiry as to the fact issue upon which taxpayers would rely, their counsel replied:
"The fact issue which the plaintiffs will rely on in this case is whether or not the plaintiffs had net poker winnings in any amount for the taxable year of 1944."
The Court held that this ground for recovery is at variance with the grounds for recovery relied upon by taxpayers in their claim for refund, as amended. In view of this holding and taxpayers' election to rely solely upon the ground stated, the Court instructed the jury to return a verdict for appellee. Judgment was entered...
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