Einson-Freeman Co. v. Corwin, 338.
| Decision Date | 17 June 1940 |
| Docket Number | No. 338.,338. |
| Citation | 112 F.2d 683 |
| Parties | EINSON-FREEMAN CO., Inc., v. CORWIN, Former Collector of Internal Revenue. |
| Court | U.S. Court of Appeals — Second Circuit |
Samuel O. Clark, Jr., Asst. Atty. Gen., Sewall Key, Norman D. Keller, and Frederic G. Rita, Sp. Assts. to Atty. Gen., and Harold M. Kennedy and Frank J. Parker, both of Brooklyn, N. Y., for appellants.
Newman & Bisco, of New York City (Leonard G. Bisco and Frederick E. Winkler, both of New York City, of counsel), for appellee.
Before L. HAND, CHASE, and PATTERSON, Circuit Judges.
The question is whether a taxpayer whose claim for refund has been rejected may extend the time fixed by statute for commencement of action by filing a second claim for refund on one of the grounds asserted in the first claim.
The Revenue Act of 1932, section 609, 26 U.S.C.A. Int.Rev.Acts, page 612, imposed a tax on games, except children's games. The Treasury Department made a regulation that jig saw puzzles were games, with a proviso that puzzles containing 50 pieces or less were children's games and so not taxable. The plaintiff, a manufacturer of jig saw puzzles, paid taxes in 1933 amounting to some $23,000. On January 15, 1935, it filed claim for refund. In this claim the plaintiff made two points: first, that jig saw puzzles were not games; second, that if they were games, they were children's games, irrespective of the number of pieces. The commissioner stood on his regulation and disallowed the claim, this under date of August 13, 1935. There the matter rested until February 4, 1937, when the plaintiff filed a second claim for refund of the taxes. The ground stated in the second claim was that jig saw puzzles were not games, a ground which, as we have seen, was one of the two grounds relied on in the first claim. The claim was disallowed on August 4, 1937. This action to recover the taxes paid was commenced on January 10, 1939. The plaintiff based its right to recover on the proposition that the puzzles were not games. The defendants conceded that on the merits the plaintiff was right; the concession was inevitable in view of White v. Aronson, 302 U.S. 16, 58 S.Ct. 95, 82 L.Ed. 20, to the effect that jig saw puzzles were not games within the meaning of the Revenue Act of 1932. The defendants based their defense on the statutory provision that suit for recovery of taxes paid must be brought not later than two years after notice of disallowance of claim for refund. Revenue Act of 1932, section 1103, 26 U.S.C.A. Int.Rev.Acts, page 652. They called attention to the fact that more than two years elapsed between disallowance of the first claim for refund and commencement of suit, and urged that the filing of a second claim and the disallowance of it were ineffective.
We are of opinion that suit was barred by limitations. Under the Revenue Act the filing of a claim for...
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Miller v. U.S.
...the statute by filing successive claims. See Stratmore v. United States, 463 F.2d 1195, 1196-1197 (3d Cir. 1972); Einson-Freeman Co. v. Corwin, 112 F.2d 683, 684 (2d Cir.), cert. denied, 311 U.S. 693, 61 S.Ct. 75, 85 L.Ed. 449 (1940); Fajardo Sugar Growers Ass'n v. United States, 161 F.Supp......
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Worthington Pump & Machinery Corp. v. United States
...tax this was sufficient to show that he had absorbed it. Einson-Freeman Co. v. Corwin, D.C., 29 F.Supp. 98 (reversed on other grounds, 2 Cir., 112 F.2d 683). In some cases it was thought that the tax passed on where, together with other facts, there was no way of showing a conscious attempt......
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Huettl v. U.S.
...(3d Cir. 1972). For purposes of limitations on suit, it makes no difference that the IRS acted on the second claim, Einson-Freeman Co. v. Corwin, 112 F.2d 683, 684 (2d Cir.), cert. denied, 311 U.S. 693, 61 S.Ct. 75, 85 L.Ed. 449 (1940), and this is true even where the taxpayer meets the sta......
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Jolivet v. Elkins, Civ. No. H-74-595.
...a result would put it in the power of the plaintiff to enlarge the time set by statute for commencing suit. See EinsonFreeman Co. v. Corwin, 112 F.2d 683, 684 (2d Cir. 1940), cert. den., 311 U.S. 693, 61 S.Ct. 75, 85 L.Ed. 449 (1940). The running of limitations is not tolled in the absence ......