Mohawk Rubber Co. v. United States, 43409.
| Decision Date | 14 November 1938 |
| Docket Number | No. 43409.,43409. |
| Citation | 25 F. Supp. 228 |
| Parties | MOHAWK RUBBER CO. v. UNITED STATES. |
| Court | U.S. Claims Court |
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Frederick L. Pearce, of Washington, D. C. (Morris, Kix-Miller & Baar, of Washington, D. C., on the brief), for plaintiff.
George H. Foster, of Washington, D. C., and James W. Morris, Asst. Atty. Gen. , for the United States.
Before BOOTH, Chief Justice, and GREEN, LITTLETON, WILLIAMS, and WHALEY, Judges.
The plaintiff is suing to recover an admitted overpayment of income tax for the year 1928. The material facts are set out in the findings. The plaintiff alleges a timely claim for credit was filed for the year in question. It is only necessary to repeat the facts bearing upon this issue to show that the position of the plaintiff is untenable.
The stipulated facts show that plaintiff, with an affiliated corporation, duly filed consolidated income tax returns for 1926, 1927, and 1928. The entire tax shown on the return for 1928 was, by appropriate agreement of the parties, allocated to, assessed against, and paid by plaintiff in quarterly installments. After the return for 1928 had been made, a revenue agent audited the returns for the three years and recommended an additional tax for 1927 of $43,433.46 and reported an overassessment for 1928 of $34,253.34. The application of the overassessment of 1928 against additional tax for 1927 resulted in the plaintiff apparently being liable for a net additional tax for the two years of $9,180.12. The plaintiff was furnished a copy of the report dated September 6, 1930, and on December 10, 1930, the taxpayer filed a protest against the report with the internal revenue agent in charge. The protest was duly forwarded to the Bureau of Internal Revenue by the agent in charge. It is this document which plaintiff contends constitutes a timely claim for credit which would permit recovery in this proceeding.
Although we do not regard them as material, certain proceedings were taken thereafter, among which were the issuance by the Commissioner of a deficiency notice incorporating the same deficiency and overassessment as shown by the report of the revenue agent; the filing by plaintiff of a petition for review by the Board of Tax Appeals; the dismissal of the petition by the Board; an appeal to the Court of Appeals of the District of Columbia; and other actions in reference to the assessment, collection, refund, credit, or abatement of the amounts appearing in the report of the revenue agent. Through all these proceedings no change was made in the amounts of the additional tax and overassessment, as shown by the report of the revenue agent. The correctness of these amounts is confirmed by the stipulation of the parties in this proceeding.
When the Commissioner mailed his deficiency notice for 1927 on March 3, 1931, which included not only the determination of the deficiency but also the overassessment for 1928, he enclosed a blank form of claim for refund and suggested that it be filled out and filed by plaintiff in order to protect it against the running of the statute of limitations for any amount which might ultimately be found to have been overpaid for 1928. However, the plaintiff delayed in following this suggestion and did not file the claim for refund for 1928 until December 12, 1931, over nine months after the refund claim had been sent to it. The claim, as filed, asked for the refunding of $34,253.34, the exact amount shown in the Commissioner's determination. Section 322 of the Revenue Act of 1928, 26 U.S.C.A. § 322, allowed two years after the payment of the tax in which to file a refund claim. Only the last installment of the tax paid came within that period. The three other installments had been paid more than two years prior to the filing of the claim. The Commissioner refused to recognize the claim for refund as effective for the three installments but did grant the claim for the last quarterly payment for 1928 in the full amount of $20,578.30. In his action on the claim for refund, the Commissioner issued a certificate of overassessment for 1928 in which he showed an overassessment in the amount set out in the revenue agent's report, $34,253.34, and the application of the last quarterly payment of $20,578.30 as a credit and the disallowed balance of $13,675.04 on the ground that this balance was barred by the statute of limitations, the first three quarterly payments for 1928 having been paid more than two years prior to the date of the filing of the...
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