Fawcett v. United States, 25839-S.
| Decision Date | 11 March 1947 |
| Docket Number | No. 25839-S.,25839-S. |
| Parties | FAWCETT et al. v. UNITED STATES. |
| Court | U.S. District Court — Northern District of California |
Reginald S. Laughlin, of San Francisco, Cal., for plaintiffs.
Frank J. Hennessy, U. S. Atty., and William E. Licking, Asst. U. S. Atty., both of San Francisco, Cal., for defendant.
This is an action by certain distributees and the executrix of a deceased distributee, of the estate of Lillian Ryan Fitzgerald, to recover the sum of $5,026.38, assessed as estate tax, with interest thereon from January 12, 1942, the date of payment. This assessment resulted from the Commissioner of Internal Revenue having included in the value of the gross estate the sum of $27,199 received during the year subsequent to the decedent's death as dividends on stock owned by the decedent. Defendant admits that this assessment was erroneous and illegal and the sole question for decision is whether the claim for refund was timely filed.
Plaintiffs filed their claim on November 16, 1945, some three years and ten months after payment of the tax, and the Commissioner rejected it on the ground that it had not been filed within the three year period provided by Sec. 910 of the Internal Revenue Code (26 U.S.C.A. Int.Rev.Code, § 910). So far as pertinent, that section provides: "All claims for the refunding of the tax imposed by this subchapter (the Basic Estate Tax) alleged to have been erroneously or illegally assessed or collected must be presented to the Commissioner within three years next after the payment of such tax."
Plaintiffs contend that since the assessment was erroneous and illegal, it falls within the provisions of Sec. 3313, Internal Revenue Code (26 U.S.C.A. Int.Rev.Code, § 3313), and their claim was timely if filed within four years from the date of payment. The pertinent provisions of that section are as follows: "All claims for the refunding or crediting of any internal revenue tax alleged to have been erroneously or illegally assessed or collected, * * * or if any sum alleged to have been excessive or in any manner wrongfully collected must, except as otherwise provided by law in the case of income, war-profits, excess-profits, estate, and gift taxes, be presented to the Commissioner within four years next after the payment of such tax * * *."
In support of their position, plaintiffs rely on cases that have followed the decision of the Ninth Circuit Court of Appeals in Huntley v. Southern Oregon Sales, Inc., 102 F.2d 538. There income taxes were collected from a co-operative association that was exempt by law from taxation and the question was whether the two year limitation period provided by Sec. 322(b) (1) of the Revenue Act of 1928, 26 U.S.C.A. Int.Rev. Code, § 322(b) (1), to cover claims for refund of overpayment of income tax,...
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