The opinion of the court was delivered by: ROSENBERG
By this action the plaintiffs Clyde W. Prosser, Sr. and Barbara Prosser, his wife, seek to recover from the defendant the United States of America, $ 3,063.95 in federal income taxes, penalties and interest paid by them with respect to their taxable calendar years 1951, 1953, 1954, 1955 and 1958, together with interest and costs. Assessments and payments were made pursuant to the provisions of the Internal Revenue Code of 1939, 26 U.S.C. § 1952 Ed., 293 and § 294, and of the Internal Revenue Code of 1954, 1958 Ed., § 6501 and § 6653. These read as follows:
Internal Revenue Code of 1939:
'Sec. 293. ADDITIONS TO THE TAX IN CASE OF DEFICIENCY. * * *
'(b) Fraud. -- If any part of any deficiency is due to fraud with intent to evade tax, then 50 per centum of the total amount of the deficiency (in addition to such deficiency) shall be so assessed, collected, and paid, in lieu of the 50 per centum addition to the tax provided in section 3612(d)(2).
'Sec. 294. (as amended by Sec. 118, Revenue Act of 1943, c. 63, 58 Stat. 21, and Sec. 13(b), Individual Income Tax Act of 1944, c. 210, 58 Stat. 231) ADDITIONS TO THE TAX IN CASE OF NONPAYMENT. * * *
'(1) Failure to file declaration or pay installment of estimated tax
Internal Revenue Code of 1954:
' § 6501. Limitations on assessment and collection
'(a) General rule. -- Except as otherwise provided in this section, the amount of any tax imposed by this title shall be assessed within 3 years after the return was filed (whether or not such return was filed on or after the date prescribed) or, if the tax is payable by stamp, at any time after such tax became due and before the expiration of 3 years after the date on which any part of such tax was paid, and no proceeding in court without assessment for the collection of such tax shall be begun after the expiration of such period. * * *
'(1) False return. -- In the case of a false or fraudulent return with the intent to evade tax, the tax may be assessed, or a proceeding in court for collection of such tax pay be begun without assessment, at any time.
' § 6653. Failure to pay tax * * '(b) Fraud. -- If any part of any underpayment (as defined in subsection (c)) of tax required to be shown on a return is due to fraud, there shall be added to the tax an amount equal to 50 percent of the underpayment. In the case of income taxes and gift taxes, ...