Caswell v. United States, Civ. No. 7975.

• Decision Date: 15 November 1960
• Docket Number: Civ. No. 7975.
• Citation: 190 F. Supp. 591
• Parties: Jennie J. CASWELL, Plaintiff, v. UNITED STATES of America, Defendant.
• Court: U.S. District Court — Northern District of California

190 F. Supp. 591

Jennie J. CASWELL, Plaintiff, v. UNITED STATES of America, Defendant.

Civ. No. 7975.

United States District Court N. D. California, N. D.

November 15, 1960.

Seaman, Dick & Roberts, Stockton, Cal., for plaintiff.

Laurence E. Dayton, U. S. Atty., and Richard L. Carico, Asst. U. S. Atty., San Francisco, Cal., for defendant.

HALBERT, District Judge.

At a pre-trial hearing in this case, an order was entered requiring the parties to file memoranda dealing with the legal status of the refund claims filed by the plaintiff. The questions to be covered are:

1. May the supplemental refund claim, filed by plaintiff November 29, 1957, be related back to, and be treated as a permissible amendment to, the original refund claim filed by plaintiff on October 23, 1957; and

2. If the supplemental claim may be related back to, and be treated as a permissible amendment to, the original claim, to what extent may it be so related back, and to what extent may it be so treated?

This order was made with the thought in mind that the Court could, upon proper consideration of this problem, enter an interlocutory order which would be determinative of this issue. The parties have filed the memoranda required by the order, and the matter has been submitted to the Court for its consideration and determination.

The record before the Court shows that on October 23, 1957, plaintiff filed a timely claim for the refund of sums paid on account of 1948 income taxes. The amount of the claimed refund is $21,480 plus interest. The following grounds were stated:

"Taxpayer Wallace Caswell plaintiff's husband before his death in 1949 claimed he made timely payment for farmer's estimated tax in the amount of $21,480.00. On examination of his return in 1954, the same amount was assessed for nonsubstantiation. Taxpayer's representative believes this amount was timely paid and is filing this claim for protective purpose to allow more time for proof of payment."

From the claim, it appeared that the amounts assessed were paid in October, 1955. The claim puts the District Director on notice of the following contentions of fact, advanced by plaintiff:

1. Wallace Caswell paid the amount of $21,480 on or before January 15, 1949;

2. This payment was on Caswell's estimated income tax liability for 1948;

3. The amount was assessed against Caswell's estate in 1954; and 4. Plaintiff paid it in October, 1955.

Thereafter, on November 29, 1957, plaintiff filed a supplemental claim (It would not be timely as an original claim) which read as follows:

"Original claim filed October 23, 1957. Taxpayer believes that there was timely filing of the return, assessment of the total tax liability shown thereon and that the subsequent assessment, under which the claimed amount was paid, was invalid and that the collection thereof was invalid, illegal and erroneous."

Assuming that the allegation relative to the assessment of the tax was an allegation of fact (rather than a conclusion of law), the only new allegations of fact contained in the supplemental claim were that the return was timely filed, and the tax was timely assessed thereon. These are facts which would inevitably come to the attention of any administrative official who was investigating the original claim. Moreover, it would ordinarily be assumed that the return and assessment were timely, for it would be the exception, and not the rule, for them to be tardy.

In deciding whether a supplementary claim is a permissible amendment, the analogies of pleading are helpful, but an analogy is not to be so slavishly followed as to ignore the realities of administrative procedure (United States v. Andrews, 302 U.S. 517, 58 S. Ct. 315, 82 L.Ed. 398). An amendment which merely makes more definite the matters already within the administrator's knowledge, or which, in the course of his investigation, he would naturally have ascertained, is permissible (United States v. Andrews, supra). From this rule, it follows that the amendment in the instant case was proper.

Defendant has cited Scharpf v. United States, D.C., 157 F.Supp. 434, affirmed per curiam 9 Cir., 250 F.2d 744, and Connell v. Hopkins, D.C., 43 F.2d 773, in support of its position. An examination of these cases will show that they fail to provide the support which defendant asserts they do. Scharpf v. United States, supra, is unlike the instant case. In that case, the original claim, in the natural course of administrative procedure, would lead the administrator to conclude that he need only await the outcome of then-pending litigation related to the claim. In the ordinary course of his investigation, he, therefore, would certainly not have considered the facts on which the subsequent...