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March 9, 1936


The opinion of the court was delivered by: SCHOONMAKER

SCHOONMAKER, District Judge.

This is a suit to recover an alleged overpayment of individual income tax for the year 1917. A jury trial was waived, and the case was heard on written stipulations of fact, plus certain oral testimony offered at the trial by the plaintiff.

It was agreed that the instant case was typical as to its issues of fact and law to those involved in five certain other cases heard at the same time, i.e., Citizens National Bank, Executor of the Estate of J. A. Baxendell, Deceased, v. United States, No. 6351 Law; Charles Butler v. United States, No. 6352 Law; Nettie Hawkins, Executrix, Estate of George L. Hawkins, deceased, v. United States, No. 6353 Law; W. W. Hawkins, Executor, Estate of James A. Hawkins, deceased, v. United States, No. 6354 Law; William Carroll, v. United States, No. 6355 Law; except as to slight differences in dates and figures, and that the decision and judgment in the instant case be followed in the five other cases.

 Accordingly, in the instant case we make and file the following findings of fact and conclusions of law.

 Findings of Fact.

 The court adopts as its findings of fact the stipulations of fact signed by the parties and filed in the case.

 Conclusions of Law.

 The plaintiff is not entitled to recover and judgment will be entered for the defendant.


 Briefly stated, the facts of the case are as follows:

 March 30, 1918, plaintiff filed with the collector in this District an income tax return for the year 1917, showing tax liability of $2,751.16, which he paid June 12, 1918. In May, 1920, the Commissioner of Internal Revenue, upon audit and review of this return, found an additional tax to be due from the plaintiff of $402.98, and assessed the same against the plaintiff, who paid the same June 24, 1920. In January 1925, the Commissioner made an additional income tax assessment against the plaintiff for the year 1917 of $457.67, which the plaintiff paid on February 16, 1925.

 During the year 1917 the plaintiff was a member of the partnership known as the Fredericktown Coal & Coke Company, holding a one-sixth interest therein; and these taxes were in part based on the income of that partnership.

 A petition for redetermination of the income of the partnership involving the valuation of its coal properties as of March 1, 1913, having been filed with the United States Board of Tax Appeals, and that Board having decided in the latter part of the year 1928 that the excess profits tax of the partnership for the year 1917 was $133,964.30, the Commissioner of Internal Revenue, on September 18, 1928, issued a certificate of overassessment to plaintiff allowing a deduction against his income from the partnership one-sixth of the excess profits tax paid by the partnership. Such certificate shows the original assessment of $2,751.16 and the additional assessments in May, 1920, of $402.98, and in January, 1925, of $457.67, making a total assessment of $3,611.81. It further shows the correct tax liability of the plaintiff for that year to have been $1,100.18, which would make an overpayment in tax for that year of $2,511.63. Of this amount, $457.67 with interest was paid back to plaintiff, and the balance of $2,053.93 was disallowed because the plaintiff's claim to have it refunded was barred by the statute of limitations. Said $457.67 plus interest was paid by defendant to plaintiff on October 8, 1928.

 March 15, 1923, plaintiff filed a general claim for refund of $2,751.16, representing 1917 income taxes paid by plaintiff prior to that time.

 December 1, 1924, the Commissioner of Internal Revenue found a deficiency of tax assessment against plaintiff of $457.67, and in a letter to plaintiff notifying him of such tax deficiency, stated as follows: "In accordance with the above conclusion your claim for the refund of $2751.16 will be rejected for $2751.16."

 Thereafter, in schedule of rejected claim No. 3367, dated March 18, 1925, appears the following: "Assessment List month year page line Name and Address Amount June 1918 1541 1882 Hawkins, W.W. 1917 $2751.16"


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