Regina v. United States

• Decision Date: 05 July 1962
• Docket Number: Civ. A. No. 60-707.
• Citation: 208 F. Supp. 137
• Parties: Joseph T. REGINA and Virginia Regina, Plaintiffs, v. UNITED STATES of America, Defendant.
• Court: U.S. District Court — Eastern District of Pennsylvania

208 F. Supp. 137

Joseph T. REGINA and Virginia Regina, Plaintiffs, v. UNITED STATES of America, Defendant.

Civ. A. No. 60-707.

United States District Court W. D. Pennsylvania.

June 12, 1962.

Order of June 8, 1962.

Amended July 5, 1962.

Edwin J. Martin, Pittsburgh, Pa., for plaintiffs.

David G. Hill, Asst. U. S. Atty., Pittsburgh, Pa., for defendant.

ROSENBERG, District Judge.

This matter arises on Motion of the Government as defendant to dismiss the action of the plaintiffs upon tender by the defendant to the plaintiffs of the monies demanded in the complaint and further to dismiss the defendant's counterclaim.

At a conference by this court with Counsel on January 11th, 1962, the defendant stated that a letter had gone forward to the plaintiffs setting forth the Government's action of refunding the money demanded by the plaintiffs. A written Motion followed for allowance to dismiss the action upon payment of the money demanded in the complaint. At the argument on the motion, plaintiffs objected to the same on the theory, that unless all of their expenses were reimbursed, they would suffer a loss by reason of such dismissal of the complaint and counterclaim. Counsel were directed to file briefs.

In the plaintiffs' brief, another contention was added to that of reimbursement and that was that the court should not permit a dismissal at all, but proceed to trial to establish the valuation of the stock in question. The complaint as filed, seeks to recover back the sum of "$2,310.50 for income taxes erroneously assessed and collected by the defendant under the Internal Revenue Law and paid by plaintiffs to defendant on April 19, 1960".

For the year 1958, the plaintiffs filed a timely joint income tax return showing an overpayment of $53.90. This was refunded. On March 23, 1960, the District Director of Internal Revenue at Pittsburgh proposed a deficiency assessment of $2,310.50. The plaintiffs paid the proposed deficiency on April 20, 1960, prior to actual assessments and filed claim for refund of this amount on May 3, 1960. Suit was entered for recovery of the amount on November 3, 1960. The District Director of Internal Revenue, on December 23, 1960, assessed plaintiffs interest in the amount of $140.52. On January 23, 1961, the defendant filed a counterclaim against the plaintiffs.

The conflict exists entirely upon the valuation of fifteen (15) shares of stock of Jefferson Memorial Park, Inc., the exchanging corporation, to be dissolved, held by one of the plaintiffs out of 2,000 shares outstanding of $100.00 par common stock owned by approximately twenty-one (21) stockholders. The total assets of the corporation were close to $2,000,000.00. This stock, as a profit corporation, was exchanged for stock of Forest Lawn Gardens, Inc., a non-profit corporation, with assets in 1958 of approximately $190,000.00.

We are not concerned here with the merits of valuation or assessment. The questions as raised are simply:

(1) Should the Government be permitted to make payment of the amount of money which it tenders and for which the plaintiffs ask in their complaint, and further be permitted to withdraw its counterclaim and have the action against it dismissed; and

(2) Should or could the Government be taxed with expenses demanded and costs?

In the plaintiffs' brief, as filed and at oral argument on the motion, the plaintiffs, in effect, conceded that the Government could not be impressed with such burdens as a direct measure. It was suggested that this be done on a conditional basis. The plaintiffs suggested that the matter proceed to hearing and that witnesses be heard, and so in accordance with provisions in 28 U.S.C.A. § 2412(b), the witness fees would be...