The opinion of the court was delivered by: MCVICAR
This is an action for the recovery of federal estate taxes and interest paid thereon, alleged to have been erroneously assessed and collected from the plaintiff. The court, after hearing, makes the following findings of fact and conclusions of law:
1. This is an action for the recovery of federal estate taxes with interest thereon. The plaintiff is a citizen of the United States, a resident of Allegheny County, Pennsylvania, and was duly appointed, qualified and is acting as the executrix of the estate of Minna D. Lorch, deceased.
2. Minna D. Lorch died testate, July 19, 1938, while a resident of Allegheny County, Pennsylvania. She was survived by her only child, Margaret Lorch Fair, the executrix of her estate, her daughter's husband, Robert J. A. Fair, and her daughter's two sons, Robert J. A. Fair, Jr., and Frederick Maul Fair, with whom the decedent resided.
3. September 6, 1939, plaintiff filed a federal estate tax return for the above estate with Walter L. Miller, Collector of Internal Revenue for the Twenty-third Collection District of Pennsylvania, at Pittsburgh, Pennsylvania; that said return disclosed a net estate of $ 146,370.64 and a total tax due of $ 10,536.78, which she paid to the Collector of Internal Revenue.
4. That upon the audit of said federal estate tax return, the Commissioner of Internal Revenue assessed a deficiency in estate tax against the plaintiff in the amount of $ 23,188.21. After notice and demand from the Collector, plaintiff paid, March 3, 1942, the said deficiency and interest thereon in the amount of $ 3,280.65.
5. May 15, 1942, and on November 20, 1942, plaintiff duly filed claims for refund of the above amounts with interest thereon, according to law. June 9, 1942, the Commissioner of Internal Revenue disallowed the claim filed May 15, 1942. More than six months have elapsed since the filing of the claim for refund November 20, 1942. The Commissioner has never allowed or disallowed the claim and has taken no action thereon.
6. The plaintiff is the sole owner of said claim. No action thereon has been taken in Congress or by any of the departments. Plaintiff has, at all times, borne true allegiance to the Government of the United States and has not in any way aided, abetted or given encouragement to any rebellion against said Government. No part of the above payment has been abated, refunded or credited to the plaintiff or to the said estate.
7. The Commissioner of Internal Revenue increased the value of decedent's estate from the returned amount of $ 193,079.12 to the amount of $ 357,541.37, by adding to it the aggregate amount of gifts made to Margaret Lorch Fair, daughter, Robert J. A. Fair, son-in-law, Frederick Maul Fair and Robert J. A. Fair, Jr., grandchildren, which gifts the Commissioner valued at $ 164,462.25.
8. Decedent did make gifts to the above-named persons December 24, 1935 (which was about two years and seven months before her death). The aggregate amount of said gifts was $ 151,662.25. The gifts of stock valued at $ 146,167.25 made to Margaret Lorch Fair was subject to the assumption of the obligation in the amount of $ 12,800 which the decedent owed to the Union Trust Company of Pittsburgh and which Margaret Lorch Fair assumed and paid, which reduced the value of the gift of stock to her to the amount of $ 133,367.25.
9. Of the total gifts made by the decedent, approximately $ 5,000 was given to the son-in-law, Robert J. A. Fair, and $ 5,000 was given to each of the two grandchildren.
10. Decedent in her last will dated January 12, 1938, bequeathed certain property to her two grandchildren and the residue of her estate to her daughter, Margaret Lorch Fair.
11. The decedent was sixty-seven years, ten months and eighteen days old at the time of her death. She was sixty-five years of age when the gifts were made December 24, 1935.
12. The immediate cause of decedent's death, as disclosed on the doctor's certificate, was cardiac ...