Cumberland Portland Cement Co. v. United States

• Decision Date: 09 January 1952
• Docket Number: Civ. No. 1021.
• Citation: 101 F. Supp. 577
• Parties: CUMBERLAND PORTLAND CEMENT CO. et al. v. UNITED STATES.
• Court: U.S. District Court — Middle District of Tennessee

101 F. Supp. 577

CUMBERLAND PORTLAND CEMENT CO. et al. v. UNITED STATES.

Civ. No. 1021.

United States District Court M. D. Tennessee, Nashville Division.

January 9, 1952.

Bass, Berry & Sims and W. W. Berry, all of Nashville, Tenn., for plaintiffs.

D. L. Johnson, Asst. U. S. Atty., Nashville, Tenn., for defendant.

DAVIES, District Judge.

The cause was submitted upon the pleadings, evidence, exhibits, and argument for plaintiffs and defendant, and, after due consideration thereof, the Court enters its Findings of Fact and Conclusions of Law, as follows:

Findings of Fact

The facts were stipulated as follows:

1. The taxpayer, Cumberland Portland Cement Co., was formerly a corporation organized under the laws of the State of Delaware and was qualified to do business in the State of Tennessee as a foreign corporation but has now surrendered its charter. By virtue of a merger agreement dated December 16, 1946, Cumberland Portland Cement Co. and Tennessee Portland Cement Corporation, also a Delaware corporation, were merged under the name of Cumberland Portland Cement Company, which merged corporation was organized under the laws of the State of Delaware. Said merged corporation was subsequently dissolved and all of its assets were transferred to a corporation of the same name, coplaintiff in this case, which was organized and is existing under the laws of the State of Tennessee.

2. Cumberland Portland Cement Co. duly filed its income and excess profits tax returns for the calendar year 1942 and paid the taxes reported due on said returns. On February 20, 1945, Cumberland Portland Cement Co. filed a claim for refund with the Collector of Internal Revenue at Nashville, Tennessee, to have an unused excess profits credit for the calendar year 1944 carried back to the year 1942. Said claim for refund for said carry back adjustment was allowed and it resulted in a total overpayment of said corporation's excess profits tax for the calendar year 1942 in the sum of $48,258.91. Of this amount, a portion was applied as an offset against a potential (but not assessed) excess profits tax deficiency of $44,716.66, which resulted from the disallowance by the Commissioner of Internal Revenue of certain deductions claimed by Cumberland Portland Cement Co. in its returns for the year 1942. The remainder of said overpayment for the year 1942 of $48,258.91, or $3,542.25, was over-assessed to Cumberland Portland Cement Co. in accordance with a Certificate of Overassessment issued by the Commissioner of Internal Revenue #2924589 — Schedule #120314. A true photostatic copy of said Certificate of Overassessment has been made Exhibit "B" to the complaint in this cause, and same is by reference made a part hereof.

3. On June 11, 1946, Cumberland Portland Cement Co. filed a claim for refund with the Collector of Internal Revenue at Nashville, Tennessee, for a refund of excess profits taxes for the calendar year 1941, resulting from an excess profits credit carry back from 1943, and said claim for refund was allowed by the Commissioner of Internal Revenue to the extent of $13,970.15. The Commissioner of Internal Revenue issued a Certificate of Overassessment, #3073969 — Schedule #120384, allowing said claim for refund in the amount of $13,970.15. A true photostatic copy of said claim for refund has been made Exhibit "A" to the complaint in this cause and same is by reference made a part hereof.

4. On June 27, 1947, the Commissioner of Internal Revenue assessed plaintiffs with interest in the amount of $10,945.17 on excess profits taxes for the calendar year 1942 in the amount of $44,716.66, but did not assess plaintiffs with a deficiency of excess profits taxes for the calendar year 1942 in said amount of $44,716.66, or any amount. The Commissioner of Internal Revenue has never assessed plaintiffs, or either of them, with a deficiency in excess profits taxes for the calendar year 1942; however, the Commissioner did determine that the plaintiff had, in its excess profits tax return filed for that year, understated its excess profits tax liability for 1942 in said amount of $44,716.66. The Commissioner of Internal Revenue applied the sum of $10,945.17 of said overassessment of excess profits taxes for the calendar year 1941 in the amount of $13,970.15 (for which the Certificate of Overassessment made Exhibit "A" to the complaint was issued) in payment of the assessment of interest on June 27, 1947, in said amount of $10,945.17. Subsequently, the Commissioner of Internal Revenue refunded to plaintiff a portion ($5,765.99) of said assessment of interest of $10,945.17, said portion being interest on the sum of $44,716.66 from February 20, 1945, to April 13, 1947. The Commissioner of Internal Revenue has not refunded the balance ($5,179.18) of said assessment of interest of $10,945.17, which is interest on the sum of $44,716.66 from March 15, 1943, to February 20,...