The opinion of the court was delivered by: SCHOONMAKER
These two actions are for the recovery of taxes paid by plaintiff which are alleged to have been illegally assessed against it.
The defendant in each case has moved for summary judgment in his favor. These motions are accompanied by a supporting affidavit and opposed by an affidavit filed by plaintiff. These motions are based on the ground that the complaint in each case fails to state a cause of action on which relief can be granted, in that no sufficient claims for refund have been filed by the plaintiff with the Commissioner of Revenue for any year or amount involved in these suits within the applicable statutory period of limitations for filing claims for refund of taxes paid.
The plaintiff takes the position that these motions can be granted only if they are sustained by the undisputed facts appearing in the pleadings. That is not our understanding of the proceedings under Rule 56(c) of the Rules of Civil Procedure, 28 U.S.C.A. following section 723c, which provides as to summary judgments:
"The judgment sought shall be rendered forthwith if the pleadings, depositions, and admissions on file, together with the affidavits, if any, show that, except as to the amount of damages, there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law."
The applicable statutes and regulations are:
(1) Section 284(c) of the Revenue Act of 1926, c. 27, 44 Stat. 9 (26 U.S.C.A. Int.Rev.Acts, page 220).
(2) Section 1113(a) of the Revenue Act of 1926, 26 U.S.C.A. Int.Rev.Acts, page 324.
By these statutes, there are these prerequisites for the recovery of overpayment of taxes: (1) the filing of a claim for refund within four years from the time the tax was paid; and (2) The institution of suit within five years from the date of the payment of tax, unless such suit was begun within two years after the disallowance of the claim for refund.
Treasury Regulations, in Article 1304 of Regulation 69, provide that claims for refund by taxpayers shall be made on Form 843, and that "all facts relied upon in support of the claim shall be clearly set forth in detail under oath."
The suit at No. 6321 was filed July 3, 1930, and involves taxes paid for the years 1917, 1919, and the first two installments of tax for the year 1920.
The facts bearing on the question of whether or not this action is barred by the statutes of limitations, are as follows:
For the year 1917 the plaintiff filed its return on April 1, 1918, reporting a tax of $36,963 which was paid June 15, 1918. On February 28, 1923, plaintiff filed a general claim for refund alleging the Revenue Act and Regulations were not in accordance with the Sixteenth Amendment and were void. Plaintiff was notified in a letter dated July 3, 1923, that this claim would be rejected, and the claim was rejected on Schedule No. 1761 dated August 29, 1923. No facts were submitted in support of the original claim, and another claim for refund was not filed until March 14, 1928. The allegations in this claim were also general and no facts were submitted in support thereof. In a letter dated July 6, 1928, plaintiff was advised that the latter claim would be rejected for the reason that the claim was barred when filed under the provisions of Section 284 of the 1926 Act, and the claim was rejected on Schedule No. 12768 dated August 24, 1928.
For the year 1919 plaintiff filed a tentative return on March 15, 1920, reporting a tax of $52,000, and on March 17, 1920, paid the sum of $12,878. Plaintiff's final return was filed July 15, 1920, reporting a tax of $51,942.61. This tax was paid in instalments on June 16, September 15, and December 17, 1920. No claim for refund was filed until March 14, 1928, and in a letter dated July 6, 1928, plaintiff was advised that this claim was barred under the provisions of ...