tax, and claiming a refund of $6,165.00 with interest. Later plaintiff brought suit for this refund. Defendant contends that full payment of the tax as originally computed is, under Flora, prerequisite to a suit for refund in a District Court.
The crux of the matter depends upon what effect is to be given to the amended return. Defendant contends, accurately so far as we are informed, that the statutes recognize no such creature as an amended return; that amended returns are tolerated purely as an administrative practice; and that the Treasury is not obliged to change the "assessment" as recorded on its books merely because the taxpayer has filed an amended return.
It is obvious that the Treasury's position results in gross injustice in the case at bar.
It seems clear that if plaintiff had disclaimed liability for any gift tax at all he could have brought suit to recover the amount he had inadvertently paid to the government. If his annual tax were zero, no violence to the principle of unity of yearly reckoning would be done.
But because he honestly admits that part of the property he gave away really was a gift, he is precluded, under the Treasury theory, from seeking refund of gift tax on what was not a gift because that would "split" the unity of his annual unitary obligation.
Possibly the Treasury could deal appropriately with the circumstances when amended returns should be permitted by Regulations under 26 U.S.C. § 6202.
If not, Congress should give attention to the matter. Or perhaps the Supreme Court, in its recent role as redresser general of all wrongs in the body politic,
might modify Flora where necessary to achieve justice in particular circumstances.
But this Court feels powerless to aid this nonagenarian plaintiff, the victim of ingratitude akin to that suffered by King Lear.
Perhaps we might cheerfully follow Justice Frankfurter's habit of following "almost blindly" the accepted understanding of tax law when "manifested by long-continued, uniform" administrative practice (362 U.S. at 177), and hold accordingly that the general practice of permitting amended returns has created a rule that such returns must be permitted in a situation such as that in the case at bar. But so to hold would really be a conscientious impossibility and amount to thrusting our sickle into an alien field.
We are constrained to adopt the Treasury's legal reasoning and to dismiss the instant cause for lack of jurisdiction under 28 U.S.C. § 1346(a)(1) as expounded in Flora.
AND NOW, this 8th day of October, 1968, upon consideration of defendant's motion to dismiss, and of briefs in support thereof and in opposition thereto, for the reasons set forth in the foregoing opinion,
IT IS ORDERED that said motion be and it hereby is granted and that the instant cause be and the same hereby is dismissed for lack of jurisdiction.