Phoenix Glass Co. v. United States

• Decision Date: 25 April 1929
• Docket Number: No. 5840.,5840.
• Citation: 34 F.2d 217
• Parties: PHŒNIX GLASS CO. v. UNITED STATES.
• Court: U.S. District Court — Western District of Pennsylvania

34 F.2d 217 (1929)

PHŒNIX GLASS CO. v. UNITED STATES.

No. 5840.

District Court, W. D. Pennsylvania.

April 25, 1929.

Thomas E. Whitten, of Pittsburgh, Pa., and Wallick & Shorb, of Washington, D. C., for plaintiff.

John D. Meyer, U. S. Atty., of Pittsburgh, Pa.

McVICAR, District Judge.

This case comes before us on a statutory demurrer to the plaintiff's statement of claim.

The material facts averred in the statement must be taken as true in consideration of the question now before us, and these facts are as follows:

The Phœnix Glass Company, a corporation of the state of West Virginia, filed its return of income and profits for the period beginning January 1, 1919, and ending June 30, 1919, and paid the taxes as shown thereon, in the amount of $12,490.40. On November 29, 1924, the Commissioner of Internal Revenue assessed an additional tax for said period, in the sum of $4,825.86. In November, 1924, the collector of internal revenue at Pittsburgh applied money in his hands due the plaintiff by reason of an overassessment in payment of said additional tax.

On September 1, 1925, plaintiff took an appeal from the decision of the Commissioner of Internal Revenue in the assessment of the additional tax aforesaid, and set forth therein the reasons for said appeal. On September 9, 1926, the plaintiff filed with the collector of internal revenue at Pittsburgh, for transmittal to the Commissioner of Internal Revenue, claim for the refund of $1 (or such greater amount as is legally refundable) for the said period ending June 30, 1919, and in words and figures set forth the following:

"An appeal is pending before the United State Board of Tax Appeals which may affect the tax liability in this year. In the event that favorable action is taken by the Board we would request that any overpayment of income or excess profits tax as determined by the Board, should be refunded us."

On November 11, 1926, the Commissioner of Internal Revenue notified the plaintiff that its claim for refund had been refused. The plaintiff then brought this action.

Defendant in its statutory demurrer alleges that the statement does not contain facts sufficient to constitute a cause of action against the defendant, because it appears upon the face thereof that the only claim ever filed for refund of the taxes here in controversy did not set forth any of the facts relied upon, and was and is therefore insufficient to support an action for the recovery of said taxes.

The question for our consideration is whether the claim for a refund was sufficient. The Revenue Act of 1926, applicable to the facts of this case, in section 1113(a), amending Rev. St. § 3226 as amended (26 USCA § 156) reads:

"No suit or proceeding shall be maintained in any court for the recovery of any internal revenue tax alleged to have been erroneously or illegally assessed or collected, or of any penalty claimed to have been collected without authority, or of any sum alleged to have been excessive or in any manner wrongfully collected until a claim for refund or credit has been duly filed with the...