The opinion of the court was delivered by: FOLLMER
This is an action for the recovery of income taxes and interest paid for the year 1952. The sole question involved is: 'Was the claim for refund, upon which the taxpayer relies as a basis for this Court's jurisdiction in this action, timely filed?' The matter is presently before the Court on defendant's motion for summary judgment. The parties stipulated that the said motion should be determined without oral hearing upon briefs pursuant to Rule 78 of the Federal Rules of Civil Procedure, 28 U.S.C., and Rule 50 of the local rules of this Court. Affidavits and briefs were submitted by both parties.
The undisputed facts in the case are as follows: On March 16, 1953 plaintiff duly filed a Federal income tax return for the calendar year 1952 and paid the taxes shown thereon to be due. On March 16, 1956 plaintiff filed an amended return showing additional income tax in the sum of $ 3,882.36, which it paid. On May 29, 1958, plaintiff filed a claim for refund of the afore-mentioned taxes. This claim for refund was rejected on the grounds that it was not timely filed. Plaintiff has admitted that none of the sums sought to be recovered in this action were paid subsequent to May 26, 1956.
Plaintiff further avers that the Tax Court's decision was against the individual Kaltreiders, whereupon the latter appealed to the Court of Appeals of the Third Circuit. On May 21, 1958, the Court of Appeals Kaltreider v. Commissioner of Internal Revenue, 255 F.2d 833, affirmed the decisions of the Tax Court.
The pertinent statutes here involved are as follows: 26 U.S.C. § 322 (1952 Ed.):
'(b) Limitation on allowance --
(1) Period of limitation.
'Unless a claim for credit or refund is filed by the taxpayer within three years from the time the return was filed by the taxpayer or within two years from the time the tax was paid, no credit or refund shall be allowed or made after the expiration of whichever of such periods expires the later. * * *'
26 U.S.C. § 7422 (1958 Ed.) Internal Revenue Code of 1954:
' § 7422. Civil Actions for refund.
'(a) No suit prior to filing claim for refund.
'No suit or proceeding shall be maintained in any court for the recovery of any internal revenue tax alleged to have been erroneously or illegally assessed or collected, or of any penalty claimed to have been collected without authority, or of any sum alleged to have been excessive or in any manner wrongfully collected, until a claim for refund or credit has been duly filed with the Secretary or his delegate, according to the provisions of law in that regard, and the regulations of the Secretary or his delegate established in pursuance thereof.'
Vol. 10, Mertens Law of Federal Income Taxation, Chap. 57, Page 31, § 57.15, states as follows:
'Amended Returns. When the return required by law has been filed and thereafter an amended return is filed, the statute of limitations begins to run from the date the original return was filed, and the filing of the amended return does not operate to extend the statute. The first return, however, must be complete and meet the statutory requirements; the statute of limitations will begin only upon the filing of a proper return. It is not always easy to determine whether the problem involves a 'tentative,' ...