Opinion
No. K — 460.
February 3, 1936.
Campbell E. Locke, of New York City, for plaintiff.
Joseph H. Sheppard, of Washington, D.C., and Frank J. Wideman, Asst. Atty. Gen., for the United States.
Before BOOTH, Chief Justice, and LITTLETON, WHALEY, WILLIAMS, and GREEN, Judges.
Suit by the Cerro de Pasco Copper Corporation against the United States.
Petition dismissed.
Plaintiff sues to recover $356,099.89 with interest, alleged overpayment of income and profits tax for 1916 and 1917.
The questions presented are (1) whether the defendant properly increased the income reported by plaintiff by the amount of a profit derived by plaintiff from the liquidation of its subsidiaries, and (2) whether the defendant erred in disallowing $24,332.23 of the depreciation claimed by plaintiff.
Special Findings of Fact.
1. Plaintiff was organized October 27, 1915, under the laws of New York and has continued to exist as such corporation since that time.
The Cerro de Pasco Copper Company was organized as a New Jersey corporation February 21, 1908, with an authorized capital stock of $60,000,000, represented by 600,000 shares of the par value of $100 each, all of which were issued and outstanding October 31, 1915. It was duly dissolved August 17, 1916, that is, shortly after the transaction referred to in finding 9.
2. The Morococha Mining Company was organized as a New Jersey corporation January 30, 1908, with an authorized capital stock of $10,000,000, represented by 100,000 shares of the par value of $100 each, all of which were issued and outstanding October 31, 1915, and on which date its entire capital stock was acquired by plaintiff as shown by finding 6. It was duly dissolved December 31, 1917.
3. The Cerro de Pasco Mining Company was organized as a New Jersey corporation June 6, 1902, with an authorized capital stock of $10,000,000, represented by 100,000 shares of the par value of $100 each, of which $9,500,000 in par value was issued and outstanding October 31, 1915, and, with the exception of 10 qualifying shares, was owned by the Cerro de Pasco Copper Company until on or about August 15, 1916, and from and after that date by plaintiff. It was duly dissolved December 31, 1917.
4. The Cerro de Pasco Railway Company was organized as a New Jersey Corporation June 2, 1902, with an authorized capital stock of $3,000,000, represented by 30,000 shares of the par value of $100 each, of which 28,500 shares were issued and have since remained outstanding. The 28,500 shares were owned by the Cerro de Pasco Copper Company on August 15, 1916, on which date they were acquired by plaintiff as shown in finding 9, and have since been held by plaintiff. It has continued to exist as a corporation since the date of its organization.
5. The Cerro de Pasco Investment Company was organized as a New Jersey corporation June 18, 1902, with an authorized capital stock of $10,000,000, represented by 100,000 shares of the par value of $100 each. It was duly dissolved December 24, 1915.
6. October 31, 1915, plaintiff acquired the following assets from the Cerro de Pasco Investment Company: 570,000 shares of the capital stock of Cerro de Pasco Copper Company; 100,000 shares of the capital stock of the Morococha Mining Company, and 126 6 per cent. debenture bonds of Cerro de Pasco Mining Company (on each of which bonds there was then due $350 on account of principal). The assets were transferred to plaintiff in consideration for issue and delivery to the Cerro de Pasco Investment Company, or its nominee, of $10,000,000 in bonds and 666,666 shares of plaintiff's fully paid and nonassessable capital stock, without nominal or par value.
7. October 31, 1915, Cerro de Pasco Copper Company owned 95,000 shares of the capital stock of the Cerro de Pasco Mining Company and 28,500 shares of the capital stock of the Cerro de Pasco Railway Company.
8. Between July 13, 1916, and August 2, 1916, plaintiff acquired the remaining 30,000 shares of capital stock of the Cerro de Pasco Copper Company (570,000 shares having been acquired, as set out in finding 6), after which acquisition plaintiff owned 100 per cent. of the capital stock of the Cerro de Pasco Copper Company, except directors' qualifying shares.
9. August 15, 1916, Cerro de Pasco Copper Company transferred to plaintiff all of its assets, consisting of 95,000 shares of the capital stock of the Cerro de Pasco Mining Company and 28,500 shares of the capital stock of the Cerro de Pasco Railway Company, except a balance in cash of the $76,762.52, which was retained by the said Cerro de Pasco Copper Company.
10. July 2, 1917, the amount remaining of the balance in cash of $76,762.52 which had been retained by the Cerro de Pasco Copper Company, as set out in finding 9, and which then amounted to $60,786.84 and consisted entirely of earnings of said company (accumulated prior to March 1, 1913), was transferred by said copper company to plaintiff upon the agreement of plaintiff to assume and discharge all outstanding obligations of said copper company.
11. July 31, 1917, the Cerro de Pasco Mining Company transferred to plaintiff (which then owned all the capital stock of the Cerro de Pasco Mining Company then issued and outstanding, except qualifying shares) all the assets of Cerro de Pasco Mining Company, consisting of mines and other real and personal property pertaining thereto located in the Republic of Peru, South America. This transfer was made in consideration of the assumption by plaintiff of all the obligations of the Cerro de Pasco Mining Company.
12. At the time of the transfer to plaintiff July 31, 1917, referred to in finding 11, Cerro de Pasco Mining Company had a net surplus then on hand amounting to $5,334,911.81, representing an accumulation of earnings in that amount by said mining company between October 31, 1915, and July 31, 1917. The foregoing surplus was a part of all the general assets transferred to plaintiff which were subject to the liabilities assumed by plaintiff.
13. July 31, 1917, Morococha Mining Company transferred to plaintiff (which then owned all the capital stock of the Morococha Mining Company then issued and outstanding, except qualifying shares) all the assets of the Morococha Mining Company, consisting of mines and other real and personal property pertaining thereto located in the Republic of Peru, South America. This transfer was made in consideration of the assumption by plaintiff of all the obligations of the Morococha Mining Company.
14. At the time of the transfer to plaintiff July 31, 1917, referred to in finding 13, the Morococha Mining Company had a net surplus then on hand amounting to $409,654.60, representing an accumulation of earnings in that amount by the said mining company between October 31, 1915, and July 31, 1917. The foregoing surplus was a part of all the general assets then transferred to plaintiff which were subject to the liabilities assumed by plaintiff.
15. The combined surplus or accumulation of earnings of the Cerro de Pasco Mining Company and Morococha Mining Company on July 31, 1917, referred to in findings 12 and 14, aggregated $5,744,566.41, and represented an accumulation of earnings of these companies between October 31, 1915, and July 31, 1917.
16. As heretofore stated, subsequent to October 31, 1915, and prior to July 31, 1917, plaintiff owned all the capital stock issued and outstanding of the Cerro de Pasco Mining Company and the Morococha Mining Company except qualifying shares, and each of said companies owned and operated mines and real and personal property pertaining thereto located in the Republic of Peru, South America. From and after the transfer of July 31, 1917, to plaintiff of all the assets of the Cerro de Pasco Mining Company and Morococha Mining Company (as set out in findings 11 and 13) plaintiff owned and operated the mines and real and personal property pertaining thereto theretofore owned and operated by said companies.
17. Income and/or excess profits tax returns were filed by the several corporations named, as follows:
------------------------------------------------------ | Year for | Date | which the | return was Name of corporation | return was | filed | filed | ------------------------------|------------|------------ Cerro de Pasco Copper | | Corporation ............... | 1916 | 2/26/17 Do ...................... | 1917 | 5/2/18 Cerro de Pasco Mining | | Company ................... | 1915 | 3/28/16 Do ...................... | 1916 | 3/28/17 Do ...................... | 1917 | 5/2/18 Morococha Mining Company .... | 1915 | 3/28/16 Do ...................... | 1916 | 3/22/17 Do ...................... | 1917 | 5/2/18 Cerro de Pasco Railway | | Co. ....................... | 1917 | 5/2/18 ----------------------------------------------------------
The taxes shown on the above-mentioned returns were duly assessed by the Commissioner against the respective corporations, and were paid by checks of plaintiff on the following dates: 1915, on or about June 27, 1916; 1916, on about June 6, 1917; 1917, on or about May 2, 1918.
18. On or about May 31, 1917, the Morococha Mining Company filed a supplemental return for 1916 showing an additional tax of $10,139.10, which was duly assessed. It was paid by check of plaintiff on or about July 3, 1917.
On or about November 14, 1917, additional assessments were made against the Cerro de Pasco Mining Company for 1915 and 1916 in the respective amounts of $150 and $7,357.55, which amounts were paid by check of plaintiff on or about December 8, 1917.
In or about January, 1918, an additional assessment was made against plaintiff for 1916 of $1,435.83, which was paid by check of plaintiff on or about July 20, 1918.
The payments set out in this finding and in finding 17 were made without protest.
19. On or about October 5, 1918, claims for refund were filed by plaintiff for itself in the sum of $2,710.90; for Cerro de Pasco Mining Company in the sum of $923.68; and for the Morococha Mining Company in the sum of $93.42 on account of interest claimed on taxes prepaid for the calendar year 1917.
20. On or about June 29, 1920, amended returns were filed by plaintiff for 1917; by plaintiff as successor to the Morococha Mining Company for 1915, 1916, and 1917; by plaintiff as successor to the Cerro de Pasco Mining Company for 1915, 1916, and 1917; and by the Cerro de Pasco Railway Company for 1917. The foregoing returns showed taxes payable by the several corporations aggregating the net amount of $1,028,174.86. The taxes previously paid by or on behalf of the several corporations were $301,994.84 in excess of the total amount shown due on the amended returns.
At the time of filing the amended returns referred to above, plaintiff filed a claim for the refund of $300,614.45 for the years 1915 to 1917, inclusive, which represented the alleged overpayment of $301,994.84 as shown by the amended returns, less a deficiency of $1,380.39 due from the Backus Johnston Company, a subsidiary of plaintiff.
On or about September 9, 1920, plaintiff filed a claim for credit of $305,673.72 on account of the several years referred to above. The increase in amount alleged to have been overpaid as set out in the claim for credit over and above that claimed in the claim for refund filed on or about June 29, 1920, was due to the elimination of the aforementioned subsidiary, the Backus Johnston Company, from the consolidated return for 1917.
21. After a field investigation the Commissioner notified plaintiff December 13, 1920, of his determination of a net additional tax due from the group of $41,822.90, set out for the various companies as follows:
-------------------------------------------------------------------------------------------------------- Name of corporation | Year | Overpayment | Additional | Interest adjustment | | | tax | -----------------------------------------|--------|---------------|---------------|--------------------- Morococha Mining Company ............... | 1915 | $287.80 | ............. | .................... Morococha Mining Company ............... | 1916 | 33,603.70 | ............. | .................... Cerro de Pasco Mining Co. .............. | 1916 | 23,083.49 | ............. | .................... Morococha Mining Company ............... | 1917 | ............. | ............. | $93.42 Cerro de Pasco Mining Co. .............. | 1917 | ............. | ............. | 923.68 Cerro de Pasco Railway Co. ............. | 1917 | ............. | ............. | 189.77 Cerro de Pasco Copper Corporation ...... | 1917 | ............. | ............. | 2,710.90 Cerro de Pasco Mining Co. .............. | 1917 | 156,355.40 | ............. | .................... Cerro de Pasco Mining Co. .............. | 1915 | ............. | $5,013.65 | .................... Morococha Mining Company ............... | 1917 | ............. | 25,925.49 | .................... Cerro de Pasco Railway Co. ............. | 1917 | ............. | 1,616.19 | .................... Cerro de Pasco Copper Corporation ...... | 1917 | ............. | 225,299.99 | .................... Cerro de Pasco Copper Corporation ...... | 1916 | ............. | 1,215.74 | .................... -------------------------------------------------------------------------------------------------------- In arriving at the deficiency set out above against plaintiff for 1917, the Commissioner increased the net income as shown by plaintiff on its amended return by disallowing a deduction claimed for depreciation of $24,332.23, and by including the sum of $5,744,566.41 as profit realized by plaintiff upon the dissolution of the Cerro de Pasco Mining Company and the Morococha Mining Company, as set out in findings 11, 12, 13, 14, and 15.In arriving at the deficiency of $1,215.74 against the plaintiff for 1916, referred to above, the Commissioner increased plaintiff's net income over that reported in its original return by $60,786.84, representing a profit which the Commissioner determined had been realized by plaintiff as a liquidating dividend received in that year upon the dissolution of the Cerro de Pasco Copper Company as set out in findings 9 and 10.
22. On or about February 4, 1921, the plaintiff filed a waiver with the Commissioner of any and all statutory limitations as to the time within which assessments might be made of its tax liability for 1915 and 1916 as imposed by the Revenue Acts of 1913 ( 38 Stat. 114) and 1916 ( 39 Stat. 756). This waiver specified no date of expiration.
On or about March 4, 1921, the Cerro de Pasco Mining Company and the Morococha Mining Company each filed a waiver of any and all statutory limitations as to the time within which assessments of tax liability might be made for 1915 and 1916 as imposed by the Revenue Acts of 1913 and 1916. These waivers specified the expiration date as one year from March 1, 1921.
23. Based upon his determination of December 13, 1920, referred to in finding 21 and showing a net amount of tax due from the group of $41,822.90, the Commissioner made the following additional assessments on March 18, 1921:
A. Against plaintiff for 1916 ............... $ 1,215.74 B. Against plaintiff for 1917 ............... 34,167.09 C. Against Cerro de Pasco Railway Company for 1917 ............................... 1,426.42 D. Against Cerro de Pasco Mining Company for 1915 ............................... 5,013.65
24. After notice and demand by the collector for payment of the additional assessments referred to in finding 23, claims in abatement were filed with respect to the several assessments. Under appropriate agreements entered into by plaintiff on or about December 14, 1922, United States Treasury notes were deposited with the Columbia Trust Company to assure payment of the additional assessments referred to in finding 23 as items A, B, and C. All the foregoing claims were rejected by the Commissioner on or about January 8, 1923.
25. On or about November 22, 1921, the Cerro de Pasco Mining Company filed a claim for the refund of $175,348.92, which represented the sum of the overassessments determined by the Commissioner in his letter of December 13, 1920, in the respective amounts of $23,083.49 and $156,355.40 for 1916 and 1917, plus an interest adjustment of $923.68 and less a deficiency of $5,013.65 for 1915.
26. November 16, 1922, the Commissioner addressed a letter to plaintiff which reads as follows:
"Reference is made to office letter to you dated December 13, 1920, and to the additional tax assessed against you in accordance therewith.
"An examination of schedule 16 of the above-mentioned letter discloses that the additional tax found due from you and Cerro de Pasco Railway Company was reduced by the overassessments due the Cerro de Pasco Mining Company and the Morococha Mining Company, and that only the net additional tax due from the affiliated group was assessed against you.
"Inasmuch as the Cerro de Pasco Mining Company has filed a claim for refund of the amount of its overassessment, it is necessary to supplement and revise in part schedule 16 of above-named letter in such manner that each member of your affiliated group will be assessed with the tax due from it as shown by the schedules attached to office letter dated December 13, 1920.
"The amounts of additional tax and overassessments are shown in the following schedule.
Includes:
Original assessment ...................................... $732,947.23 Assessment dated 1/21/21 ................................. 34,167.09 Excess profits tax assessed against C. de P.R.R. Co. ..... 28,590.67 Interest on prepaid taxes ................................ 2,710.90 ___________ Total .................................................... 798,415.89
Includes:
Original assessment ...................................... $249,736.88 Interest on prepaid taxes ................................ 923.68 ___________ Total .................................................... $250,660.56
"Certificates of overassessment covering the amounts shown above to be due will be made the subject of separate communications to the respective companies.
"The foregoing partial revision does not amend nor affect the net total additional taxes of $41,822.90 due from group as shown in schedule 16 of office letter dated December 13, 1920, which amount is composed of the following additional assessments against the companies named, to wit:
Cerro de Pasco Copper Corporation, 1916 .... $ 1,215.74 Cerro de Pasco Copper Corporation, 1917 .... 34,167.09 Cerro de Pasco Railway Company, 1917 ....... 1,426.42 Cerro de Pasco Mining Company, 1915 ........ 5,013.65
"The Collector of Internal Revenue for your district will notify you of the time of making payment of the additional tax."
As shown by the foregoing letter, the Commissioner proposed to assess against the plaintiff a net additional tax of $188,422 for 1917. The foregoing amount was determined by the Commissioner as follows:
"Additional tax against plaintiff for 1917, as shown in letter of December 13, 1920 $225,299.99 Less interest adjustment ....................... 2,710.90 ----------- Balance ..................................... 222,589.09 Less amount assessed as shown in finding 23 .... 34,167.09 ----------- Net amount to be assessed ................... $188,422.00"
The aforementioned letter of November 16, 1922, also proposed the assessment of an additional tax against Morococha Mining Company of $25,925.49 for 1917.
27. Pursuant to the letter of November 16, 1922, an additional assessment of $188,422 was made against plaintiff for 1917 and of $25,925.49 against the Morococha Mining Company for 1917. The foregoing assessments were made on the January, 1923, assessment list which was signed by the Commissioner February 7, 1923.
In further pursuance of the letter of November 16, 1922, certificates of overassessments were issued to the Cerro de Pasco Mining Company for 1917 in the sum of $157,279.08; to the Cerro de Pasco Mining Company for 1916 in the sum of $23,083.49; to the Morococha Mining Company for 1916 in the sum of $33,697.12; and the Morococha Mining Company for 1915 in the sum of $287.80.
28. On or about March 6, 1923, the collector mailed to the plaintiff a notice and demand for the payment of the additional tax of $188,422 which had been assessed against it for 1917, as set out in finding 26, and such demand for payment was protested by plaintiff in a document filed with the collector on or about April 9, 1923.
29. January 2, 1923, the Commissioner signed a schedule of reductions of tax liability (form 7777), which included, among others, an overassessment of $157,279.08 in favor of the Cerro de Pasco Mining Company for 1917 and such schedule was transmitted to the collector to comply with the directions appearing thereon. April 7, 1923, the collector certified that the foregoing overassessment in favor of the Cerro de Pasco Mining Company had been credited in full against the additional assessment against plaintiff of $188,422 for 1917. The collector thereupon prepared a supplemental schedule (form 7805-A), known as Schedule of Refunds and Credits, and transmitted both schedules to the Commissioner, who, on April 19, 1923, signed the aforementioned schedule authorizing the disbursing clerk of the Treasury Department to refund to the Cerro de Pasco Mining Company the sum of $5,789.16, representing interest on the amount of its overassessment which had been credited against the additional assessment of plaintiff. The foregoing amount of $5,789.16 was duly paid to the Cerro de Pasco Mining Company.
February 16, 1924, the Commissioner signed a schedule of overassessments (form 7805), which schedule embraced, among others, overassessments of $23,083.49 in favor of the Cerro de Pasco Mining Company for 1916; $287.80 in favor of the Morococha Mining Company for 1915; and $33,697.12 in favor of the Morococha Mining Company for 1916. The schedule was transmitted to the collector to comply with the directions appearing thereon. March 6, 1924, the collector certified that of the overassessments appearing thereon $23,083.49 in favor of the Cerro de Pasco Mining Company for 1916, $287.80 in favor of the Morococha Mining Company for 1915, and $7,771.63 of the total overassessment of $33,697.12 in favor of the Morococha Mining Company for 1916 had been credited upon the balance of the additional assessment of $188,422 for 1917 against plaintiff.
March 6, 1924, the collector certified to the Commissioner that the unapplied balance of $25,925.49 of the overassessment of the Morococha Mining Company for 1916, appearing on the schedule referred to above, had been applied as a credit against the additional tax in that amount of the Morococha Mining Company for 1917.
The collector thereupon prepared form 7805-A, known as the Schedule of Refunds and Credits, showing that the entire overpayments referred to above had been credited as heretofore indicated. April 2, 1924, the Commissioner signed the schedule of refunds and credits authorizing the disbursing clerk of the Treasury Department to issue a check for the amounts shown thereon as refundable. No amounts were shown thereon as refundable to the Morococha Mining Company or the Cerro de Pasco Mining Company.
30. On or about March 28, 1924, plaintiff paid to the collector, under written protest, the sum of $41,822.90, with interest thereon, on behalf of itself and its subsidiary companies as follows:
----------------------------------------------------- | Additional | Interest | tax | --------------------------|--------------|------------- Cerro de Pasco Copper | | Corporation (1917) .... | $34,167.09 | $4,612.56 Cerro de Pasco Railway | | Company (1917) ........ | 1,426.42 | 192.57 Cerro de Pasco Mining | | Company (1915) ........ | 5,013.65 | 325.89 Cerro de Pasco Copper | | Corporation (1916) .... | 1,215.74 | 72.94 |--------------|------------- Total ................ | $41,822.90 | $5,203.96 -----------------------------------------------------
31. April 6, 1927, plaintiff filed a claim for the refund of $1,288.68, representing additional tax of $1,215.74 for 1916, together with interest thereon of $72.94, which had been paid as set out in finding 29.
On the same date, plaintiff filed a claim for the refund of $354,811.21, representing tax paid for 1917 in the amount of $350,198.65, together with interest thereon of $4,612.56.
These claims were rejected by the Commissioner November 8, 1927.
The facts show that on August 15, 1916, the plaintiff, being the owner of all the outstanding capital stock of the Cerro de Pasco Copper Company, received from that company a transfer of all its assets, except the cash balance of $76,762.52, in exchange for all the capital stock so held, and that the copper company was dissolved August 17, 1916. July 2, 1917, the remainder of the sum so retained by the copper company, amounting to $60,786.84, was received by plaintiff. The defendant, because of these transfers, increased the net income reported by plaintiff for 1916 by the sum of $60,786.84 as profit derived in a liquidating dividend of the copper company upon its dissolution in that year; the resultant tax for 1916 amounted to $1,215.74.
On July 31, 1917, the plaintiff, being the owner of all the capital stock of the Cerro de Pasco Mining Company and the Morococha Mining Company, received by transfers by those companies, all of their assets in exchange for the surrender of their capital stock, and such companies were dissolved December 31, 1917. In the assets so transferred there was a net surplus of the two corporations in the respective amounts of $5,334,911.81 and $409,654.60. In its return for 1917 plaintiff did not report any profit arising from the receipt of a liquidating dividend from the dissolution of these corporations and did not include, in its return, the surplus of either of these corporations. Upon audit of the return the Commissioner of Internal Revenue determined that plaintiff had realized a profit from the liquidating dividends received from the dissolution of these corporations and increased plaintiff's income by the amount of the above-mentioned surplus of the two corporations on the ground that such surplus constituted a profit derived from liquidating dividends.
The Commissioner also disallowed $24,332.23 of the depreciation claimed by plaintiff on its return for 1917.
These adjustments in plaintiff's income for 1917 resulted in an additional tax of $225,299.99.
Plaintiff has not shown that the profit and resulting tax were incorrectly computed, but contends that its receipt of the assets of the corporations mentioned was an intercompany transaction and therefore a mere change of form resulting in no taxable gain, and that any gain or loss to it was not recognized by the statute then in force until a subsequent realization by sale or other disposition of the assets received upon liquidation of the corporations, all the stock of which plaintiff owned. This contention of plaintiff cannot be sustained. In Burnet v. Aluminum Goods Mfg. Co., 287 U.S. 544, 551, 53 S.Ct. 227, 230, 77 L.Ed. 484, the question was whether a deductible loss was sustained in the liquidation of a subsidiary, and the court said that "the loss was a real one, suffered by respondent as a separate corporate entity, and it was equally a loss suffered by the single business carried on by the two corporations during the period of their affiliation, ultimately reflected in the 1917 loss of capital invested in that business." In that case the government insisted, as the plaintiff insists here, that the loss resulted from an intercompany transaction and, therefore, that it was not deductible, but the court rejected that contention. While that case involved a deductible loss and the case at bar involves a taxable gain derived through a liquidating dividend, there can be no material distinction for if a deduction of a sustained loss is permitted certainly a profit derived is taxable. Remington Rand, Inc., v. Commissioner (C.C.A.) 33 F.2d 77; Burnet v. Riggs National Bank (C.C.A.) 57 F.2d 980; Houghton Dutton Co. v. Commissioner, 26 B.T.A. 1420, and American Printing Co. v. Commissioner, 27 B.T.A. 1270.
The next item relates to a disallowance of a deduction for depreciation in the amount of $24,332.23, which disallowance plaintiff claims was erroneous. The only information before the court on this feature of the claim is a computation by plaintiff of the depreciation in accordance with its view that the costs to the former owners should be used, but this fails to establish that the decision of the Commissioner of Internal Revenue was wrong. The Commissioner correctly used the value of the assets at the time they were acquired by plaintiff. Plaintiff had the burden of proving by competent evidence that the depreciation to which it was entitled for 1917 was in excess of that allowed by the Commissioner. American Printing Co. v. Commissioner, supra; American Printing Co. v. United States (D.C.) 53 F.2d 98; Helvering v. Taylor, 293 U.S. 507, 55 S.Ct. 287, 79 L.Ed. 623; B. Frank Bushman, Adm'r of Estate of James H. Pound, v. United States, 8 F. Supp. 694, 80 Ct.Cl. 175. This it has failed to do. The petition must therefore be dismissed, and it is so ordered.