Rockwood v. United States, H-416.

• Decision Date: 07 April 1930
• Docket Number: No. H-416.,H-416.
• Citation: Rockwood v. United States, 39 F.2d 984, 69 Ct.Cl. 524 (Fed. Cl. 1930)
• Parties: ROCKWOOD v. UNITED STATES.
• Court: U.S. Claims Court

39 F.2d 984 (1930)

ROCKWOOD v.UNITED STATES.

No. H-416.

Court of Claims.

April 7, 1930.

Geo. E. H. Goodner, of Washington, D. C. (Paul D. Banning and Mathews & Trimble, all of Washington, D. C., on the briefs), for plaintiff.

Joseph H. Sheppard, of Washington, D. C., and Herman J. Galloway, Asst. Atty. Gen., for the United States.

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

GREEN, Judge.

Plaintiff is the trustee of Caplice Commercial Company, a dissolved corporation.This is a suit to recover an alleged overpayment on corporation income and excess profits taxes paid by the corporation upon a return made for the calendar year 1917.The corporation was engaged in business during the year 1917, but the plaintiff alleges that its charter expired on October 13, 1917, and never was renewed, and that although the business of the company was carried on after the expiration of the charter by two of the three directors of the corporation, that by the laws of the state of Montana under which the charter of the corporation was obtained, on the expiration of the charter the corporation was dissolved.The plaintiff therefore contends that whatever business was conducted after the dissolution of the corporation was that of a partnership, in which, as the evidence shows, one Jesse F. Silverman and the plaintiff each owned a half interest; and that, in any event, a separate taxable entity or unit was formed upon and after the dissolution of the corporation for which a separate return should have been filed, and the corporation should only have filed a return from the beginning of the year up to the time of its dissolution.The defendant contends that by carrying on the business ostensibly as a corporation, and making a return to the government for taxes as a corporation, and not objecting to the assessment of the tax on that basis until after the expiration of the period of limitations for a reassessment of the tax on the basis which is now contended by plaintiff to be the proper one, the corporation and plaintiff, as its representative, are now estopped to assert that there was no corporation in the latter part of 1917, and estopped from asserting that a new taxable entity was set up after the period upon which the law fixed the date of dissolution, and that separate returns were required.

The parties have stipulated as follows:

"If the court finds that a corporate return should have been rendered for the period January 1, 1917, to October 13, 1917, inclusive, instead of for the entire year 1917, then judgment should be entered for the plaintiff in the sum of $5,448.76, representing $4,444.60, the amount of tax overpaid, and $1,004.16, the portion of the interest and penalties paid on May 9, 1923, applicable thereto, together with interest on said total sum as provided by law."

The statutes of Montana provided that a corporation is dissolved by the expiration of the time limited by its charter, and the time limit having, in this case...