National Fire Ins. Co. v. United States

• Decision Date: 20 October 1931
• Docket Number: No. L-49.,L-49.
• Parties: NATIONAL FIRE INS. CO. v. UNITED STATES.
• Court: U.S. Claims Court

52 F.2d 1011 (1931)

NATIONAL FIRE INS. CO. v. UNITED STATES.

No. L-49.

Court of Claims.

October 20, 1931.

COPYRIGHT MATERIAL OMITTED

Guy Patten, of Washington, D. C. (A. R. Serven and John W. Smith, both of Washington, D. C., on the brief), for plaintiff.

Charles B. Rugg, Asst. Atty. Gen. (Lisle A. Smith and Edward H. Horton, both of Washington, D. C., on the brief), for the United States.

Before BOOTH, Chief Justice, and GREEN, LITTLETON, WILLIAMS, and WHALEY, Judges.

LITTLETON, Judge.

Plaintiff contends: First, that the jurisdiction of this court to entertain this action is not governed by the provisions of sections 3226 and 3228 of the Revised Statutes requiring a claim for refund to be filed and suit to be instituted within a certain time thereafter, but is governed by the general limitation provision of section 156 of the Judicial Code (28 USCA § 262), giving six years within which to sue upon claims against the United States; secondly, that the final decision of the United States Board of Tax Appeals entered July 29, 1929, finding an overpayment of $33,349.76, is res adjudicata and, as such, binding upon this court for the total amount sued for; thirdly, that plaintiff may also in this action recover interest upon the overpayment determined by the Board of Tax Appeals; and, fourthly, that, notwithstanding issues (1) and (2), its claim for refund of March 12, 1925, is sufficient in law to entitle it to maintain this suit and recover the overpayment in question.

On the other hand, the defendant insists that under the provisions of section 284 of the Revenue Act of 1926 and section 507 of the Revenue Act of 1928 (26 USCA § 1065) the latter act being in effect at the time of the entry of the decision by the Board of Tax Appeals, the plaintiff cannot recover the overpayment determined by the board for the reason that it failed to file a claim for refund therefor within the time allowed by subdivision (g) of section 284, supra.

We are of opinion: First, that under section 284 of the Revenue Act of 1926 plaintiff was required to file a proper claim for refund on or before April 1, 1927, which it did not do. Secondly, the United States Board of Tax Appeals has held that its jurisdiction extends only to the determination of the fact of overpayment and the amount thereof, Dickerman & Englis, Inc., 5 B. T. A. 633, W. H. Hill Co., 23 B. T. A. 605, and we find no reason to question the correctness of these decisions. The decision of the Board of Tax Appeals is not therefore res adjudicata and binding on this court with respect to the question here involved. Thirdly, that the right to sue for the overpayment is given by section 284 (e) of the act of 1926 (26 USCA § 1065 and note); that in the circumstances of this case the time within which this suit could be instituted is governed by the provisions of section 3226 of the Revised Statutes, as amended (26 USCA § 156), and not by the provision of section 156 of the Judicial Code (28 USCA § 262) as for suits upon claims against the United States, and that the right to recover is dependent upon whether a timely and sufficient claim for refund was filed.

In Ohio Steel Foundry Co. v. United States, 38 F.(2d) 144, 69 Ct. Cl. 158, and Arthur Curtiss James v. United States, 38 F.(2d) 140, 69 Ct. Cl. 215, this court pointed out that in cases where the Board of Tax Appeals determines an overpayment and no question of credits is involved, and the refund of the overpayment was not barred by the statute of...