The opinion of the court was delivered by: KALODNER
This is an action to recover interest with respect to a refund of Federal Estate Tax. The case involves the issue of the right of the plaintiff to recover interest where the overpayment on account of Federal Estate Taxes was made on or about the due date of the tax, but prior to the filing of the Federal Estate Tax Return.
A jury trial was waived and the case was heard before the court on the pleadings and stipulation of facts without additional testimony.
A motion for summary judgment was filed on behalf of the defendant, which motion was not argued previous to trial.
The stipulated statement of facts which is hereby adopted at the findings of fact of this court is as follows:
"1. Philip Price by Decree dated April 7, 1933, of the Court of Common Pleas No. 3 of Philadelphia County, as of June Term, 1916, No. 1061, was appointed Substituted Trustee under Indenture executed by Mabel S. Sharp, later Mabel S. S. Hartmann, the above named decedent, dated January 23, 1888, and said appointment has not been revoked, and said Philip Price has at all times since said appointment acted as Substituted Trustee under said Indenture.As such Substituted Trustee Philip Price had in his possession on the date of decedent's death certain property which constituted part of the decedent's gross estate within the meaning of the Federal Estate Tax law. Philip Price, therefore, as such Substituted Trustee, filed with the Collector of Internal Revenue at Philadelphia on October 11, 1937, a preliminary notice on Form 705 of the property in his possession.
"2. On August 30, 1938, Philip Price received from the Collector of Internal Revenue at Philadelphia a letter dated August 29, 1938, enclosing Forms 706 Federal Estate Tax Returns * * *. Philip Price thereupon wrote to the Collector of Internal Revenue on August 30, 1938, asking for an extension of time to file the returns * * *, and the Collector replied on the following day granting an extension of thirty days * * *.
"3. On August 31, 1938, Philip Price sent the Collector of Internal Revenue a check to his order for $6,800.00, with a letter * * * which was acknowledged by the Collector by letter dated September 1, 1938. * * *
"4. The reason why the check above referred to was drawn by Philip Price was because at that time he had in his possession as such Trustee most of the assets in which the decedent had an interest situated in the United States, and at that time Ralph C. Busser, Jr., Ancillary Administrator c.t.a. of the estate of the decedent did not have in his possession sufficient assets for payment of the estimated tax. Said payment was made on behalf of said Administrator under an agreement and understanding with said Administrator that any necessary adjustment between Philip Price and said Administrator would be made later as to the amount of tax properly chargeable against the funds held by each in their respective fiduciary capacities, and this adjustment has been made in respect of the Federal Estate Tax already paid, which it is conceded was due and payable.
"5. On October 3, 1938, plaintiff filed with the Collector of Internal Revenue at Philadelphia an executed Federal Estate Tax Return and certain other papers accompanied by a letter dated October 3, 1938. * * * On October 6, 1938, the Collector wrote plaintiff enclosing a receipt covering payment of $5,000.49 tax shown on said return. * * * On October 8, 1938, the Collector orally advised plaintiff's attorney that if the audit of his return showed any overpayment, such overpayment would be refunded without plaintiff filing a claim for refund.
"6. On October 30, 1940, plaintiff filed with the Collector of Internal Revenue at Philadelphia a claim for refund. * * * On November 2, 1940, the Collector wrote plaintiff enclosing receipt in duplicate covering the excess payment of $1,799.51. * * *
"7. The refund check in the sum of $1,799.51, referred to in Paragraph 7 of plaintiff's petition, was received by him on March 25, 1941.
"9. On October 11, 1937, Philip Price, Substituted Trustee as aforesaid, filed with the Collector of Internal Revenue at Philadelphia, a preliminary notice on Form 705 in duplicate of the estate of the above named decedent. * * *
"10. Mabel S. S. Hartmann died June 2, 1937, being at the time of her death a citizen of Germany, residing in Munich. On December 14, 1937, the Register of Wills of Philadelphia County granted Ancillary Letters of Administration cum testamento annexo on the Estate of Mabel S. S. Hartmann, deceased, to Ralph C. Busser, Jr., the above named plaintiff, and said grant of Letters has not been revoked and is now in full force and effect. Plaintiff resides at 3451 Midvale Avenue, Philadelphia, Pa. On October 3, 1938, plaintiff filed with said Collector of Internal Revenue at Philadelphia his Federal Estate Tax Return on Form 706 in duplicate, which Return showed the Federal Estate Tax due to be $5,000.49.
"11. * * * the check of Philip Price, Trustee, to the order of the Collector of Internal Revenue for $6,800.00, referred to in paragraph 3 hereof, * * * was paid into the Treasury of the United States, and this amount was credited on the books of the Collector of Internal Revenue to unidentified account No. 9."
In addition to the stipulated facts, the court makes the following
Special Findings of Fact.
12. On September 1, 1938, Philip Price as Substituted Trustee under Indenture executed by Mabel S. S. Hartmann, deceased, on behalf of plaintiff, made an overpayment of $1,799.51 to the Collector of Internal Revenue at Philadelphia, in respect of the ...