United States v. Bertelsen & Petersen Engineering Co., 306 U.S. 276 (1939)

United States v. Bertelsen & Petersen Engineering Co.

No. 416

Argued February 3, 1939
Decided February 27, 1939 *
306 U.S. 276

CERTIORARI TO THE CIRCUIT COURT OF APPEALS

FOR THE FIRST CIRCUIT

Syllabus

1. A taxpayer, having overpaid internal revenue taxes for 1917, the Commissioner ordered a refund of part of the overpayment and credited the balance to a deficiency in 1918 taxes, although assessment of the latter was then barred by limitations. The taxpayer sued the United States to recover judgment in the amount so credited. The collector who had wrongfully collected the excess 1917 taxes was dead or out of office at the time this proceeding was begun.

Held:

(1) The Circuit Court of Appeals correctly ruled that timely and proper claim for the overpayment for 1917 had been made as required by R.S. 3226, as amended and reenacted by Revenue Act of 1926, and that the suit was brought

to recover that part of a claim for refund of the 1917 overpayment which had been disallowed by improperly applying it to an invalid assessment of a deficiency tax for 1918.

P. 279.

(2) The certificate of overassessment issued by the Commissioner, ordering refund of part of a disclosed overpayment for 1917 and crediting the balance to a deficiency for 1918, did not constitute an account stated between the Government and the taxpayer, who did not assent. P. 280.

(3) The suit was within the jurisdiction of the District Court under Jud.Code § 24(20), as amended. Distinguishing Lowe Bros. Co. v. United States, 304 U.S. 302. P. 280.

2. A suit brought by a taxpayer to recover admitted overpayments of internal revenue taxes for 1922 to 1925, made to a collector who at the beginning of the suit was out of office, which overpayments the Commissioner undertook to credit against alleged deficiencies of taxes for 1926 to 1928, held not a suit to recover payments on account of taxes for 1926 to 1928, but one for the recovery of overpayments for 1922 to 1925, in respect of which timely claims for refunds had been filed, and that the suit was within the jurisdiction of the District Court under Jud.Code § 24(20) as amended. P. 281.

98 F.2d 132, 97 F.2d 488, affirmed.

Certiorari, 305 U.S. 590, to review affirmances of judgments for the taxpayers in two suits brought in the District Courts to recover overpayments of federal taxes. For earlier opinions in No. 416, see 60 F.2d 745; 95 F.2d 867; 49 F.2d 395; 14 F.Supp. 868.