Weiler v. United States
| Decision Date | 06 January 1961 |
| Docket Number | Civ. A. No. 5851. |
| Citation | 191 F. Supp. 601 |
| Parties | Frank WEILER, Plaintiff, v. UNITED STATES of America, Defendant. |
| Court | U.S. District Court — Middle District of Pennsylvania |
John B. Schaner, Lewistown, Pa., for plaintiff.
Daniel H. Jenkins, U. S. Atty., Scranton, Pa., for defendant.
This suit involved a claim for a refund of taxes allegedly unlawfully assessed and collected in the sum of $5,835.60 with interest at the rate of six per cent. per annum from May 1951. After trial before the Court and without a jury, the Court awarded judgment in favor of plaintiff and against the defendant in the sum of $5,835.60 with interest thereon at the rate of six per cent. per annum from July 31, 1951.
Defendant has moved to amend the judgment so as aforesaid awarded by the sum of $868.14 so that the judgment call for recovery in the sum of $4,967.46 plus interest at the rate of six per cent. per annum from July 31, 1951. Defendant gives as its reasons in support of its motion that the District Director erroneously refunded interest of $148.28 on September 23, 1953, and erroneously made a second refund of $719.86 on March 10, 1955, totalling $868.14.
Section 6532(b) of the Internal Revenue Code of 1954, 26 U.S.C. § 6532(b), (c. 736, 68A Stat. 816) provides as follows:
"(b) Suits by United States for recovery of erroneous refunds.— Recovery of an erroneous refund by suit under section 7405 shall be allowed only if such suit is begun within 2 years after the making of such refund, except that such suit may be brought at any time within 5 years from the making of the refund if it appears that any part of the refund was induced by fraud or misrepresentation of a material fact."1
The complaint avers that plaintiff paid additional tax of $5,835.60 in May 1951. The answer admits the payment but avers it was made on July 31, 1951. The Order of the Court awarded judgment to plaintiff in the sum of $5,835.60 with interest from July 31, 1951.
The case was vigorously tried, briefs, suggested Findings of Fact and Conclusions of Law were submitted, and the matter of erroneous refunds, as aforesaid, in the sum of $868.14 was never mentioned by the Government. Not until the Memorandum of the Court and award as aforesaid in favor of plaintiff was made did defendant assert the said erroneous payments in the motion to amend the judgment order.
Basically, this is an action by a tax-payer for repayment of taxes allegedly erroneously or illegally assessed and collected under the provisions of 28 U.S.C. § 1346(a) (1) (i).
Plaintiff contends that because the motion to amend the judgment order was not made within two years of the alleged refund it is barred by Section 6532(b) of the Internal Revenue Code of 1954 (26 U.S.C. § 6532(b)) and Section 3746 of the Internal Revenue Code of 1939, respectively.
Defendant contends that the motion does not...
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Dysart v. United States
...ground for rejecting the defense. There are some decisions (Routzahn v. Brown, 95 F.2d 766 (6th Cir. 1938); Weiler v. United States, 191 F. Supp. 601 (N.D.Pa., 1961); Dupont v. United States, 28 F.Supp. 122 (D.Del., 1939)) denying leave belatedly to raise a defense of setoff which the gover......
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Bendix Corp. v. Norberg
...688 Rehearing denied, 410 U.S. 959, 93 S.Ct. 1414, 35 L.Ed.2d 695 (1973) (failure to raise a statutory exclusion); Weiler v. United States, 191 F.Supp. 601 (M.D.Pa.1961); United R. R. Operating Crafts v. New York, N. H. & H. R., 15 F.R.D. 365, 366 (S.D.N.Y.1953) (failure to raise constituti......