Thomas v. Mercantile Nat. Bank at Dallas, 14328.
| Citation | 204 F.2d 943 |
| Decision Date | 18 June 1953 |
| Docket Number | No. 14328.,14328. |
| Parties | THOMAS v. MERCANTILE NAT. BANK AT DALLAS. |
| Court | United States Courts of Appeals. United States Court of Appeals (5th Circuit) |
Walter Akerman, Jr., Special Asst. to the Atty. Gen., Ellis N. Slack, Charles S. Lyon, Assts. Atty. Gen., H. Brian Holland, Helen Goodner, Harold H. Bacon, Special Assts. to the Atty. Gen., Frank B. Potter, U. S. Atty. and Tom M. Shaw, Asst. U. S. Atty., Dallas, Tex., for appellant.
Iverson Walker, Paul Carrington and Edward L. Wilson, Dallas, Tex., Carrington, Gowan, Johnson, & Walker, Dallas, Tex., for appellee.
Before HUTCHESON, Chief Judge, and RUSSELL and STRUM, Circuit Judges.
This is an action to recover an overpayment of federal estate tax, erroneously collected. The United States admits the overpayment, but resists restitution on the ground that the taxpayer is barred by 26 U.S.C.A. § 910, which fixes a three year period of limitation for such claims. The specific question before us is whether or not, as the United States1 contends, the taxpayer was four days late in filing its claim for refund.
After the executors of the estate of Gloria D. Foster, deceased, paid the estate tax due according to their computation, an internal revenue agent proposed a deficiency in amount of $136,357.07. In order to forestall the accrual of interest on any deficiency that might be entered, the executors on August 2, 1945, before the deficiency assessment was actually entered, deposited with the Collector the amount of the proposed deficiency, with interest to that date, which was not placed in a suspense account, but was credited directly to the account of the taxpayer on August 11, 1945, as of August 2, 1945. At the same time, pursuant to 26 U.S.C.A. § 871(d), the executors executed a waiver of the restrictions upon such assessment imposed by 26 U.S.C.A. § 871(a) (1). The sum deposited as above stated resulted in an overpayment of $7618.78, which is the sum here sued for.
The deficiency assessment was signed by the local Collector on August 6, 1945, and thereafter forwarded to the Commissioner of Internal Revenue, who signed the assessment list on August 17, 1945, and returned it to the local Collector, who received it August 23, 1945.
The executors filed claim for refund of the overpayment on August 6, 1948, which was four days more than three years after the funds were deposited with the Collector to meet the proposed deficiency, but well within three years from the time when the deficiency was certified by the Commissioner.
The Commissioner rejected the claim on the ground that it was not filed within three years as required by 26 U.S.C.A. § 910, taking the position that the claim was filed four days late. The district court, however, held the claim timely, and entered judgment for the taxpayer, from which judgment this appeal is taken.
The deficiency assessment did not come into existence until the Commissioner certified the assessment list on August 17, 1945. 26 U.S.C.A. § 3642. Welch Ins. Agency v. Brast, 4 Cir., 55 F.2d 60; Davidovitz v. United States, Ct.Cl., 58 F.2d 1063; United States v. Bank of Commerce, etc., D.C., 32 F.Supp. 942. The waiver signed by the taxpayer on August 2, 1945, did not bring the deficiency into existence. It merely waived the ninety-day notice and other procedural requirements of 26 U.S.C.A. 871(a) (1).
Until the Commissioner certified the assessment list on August 17, 1945, there was no deficiency assessment,...
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...be treated as deposits. See United States v. Dubuque Packing Co., 233 F.2d 453, 462 (8th Cir. 1956); Thomas v. Mercantile Nat'l Bank at Dallas, 204 F.2d 943, 944 (5th Cir. 1953). More recent decisions of these courts purport either to reject this rule or limit its application. See Deaton v.......
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