Opinion
No. 45514.
December 6, 1943.
Frederick L. Pearce, of Washington, D.C. (Morris, Kix Miller Baar, of Washington, D.C., on the brief), for plaintiff.
Elizabeth B. Davis, of Washington, D.C., and Samuel O. Clark, Jr., Asst. Atty. Gen. (Robert N. Anderson and Fred K. Dyar, both of Washington, D.C., on the brief), for defendant.
Before WHALEY, Chief Justice, and LITTLETON, WHITAKER, and MADDEN, Judges.
Action by the Clinton Trust Company against the United States to recover capital stock taxes paid by the plaintiff to defendant.
Petition dismissed.
This case having been heard by the Court of Claims, the court, upon the evidence and the report of a commissioner, makes the following special findings of fact:
1. Plaintiff, Clinton Trust Company, is a corporation duly organized and existing under the laws of the State of New Jersey, with its principal office at 505 Clinton Avenue, Newark, New Jersey. It seeks in this suit to recover an aggregate sum of $5,343.17 of capital stock taxes and interest paid thereon for the years ended June 30, 1934, through June 30, 1940, inclusive with such interest as is allowable by law under the provisions of Section 22 of the Act of March 1, 1879, as amended, 26 U.S.C.A. Int.Rev. Code, § 3798. Plaintiff has been empowered, since prior to the year 1933, to conduct a banking and trust company business, a substantial portion of which has consisted, and consists, of receiving deposits and making loans and discounts.
2. Plaintiff, due to insolvency, was closed and its banking operations were suspended on March 4, 1933, at which time its liability to its depositors, as general creditors, was $3,617,000, its loans and discounts amounted to $1,653,000, and its total acceptable assets as valued by State and Federal authorities amounted to not more than $3,359,000. Plaintiff remained closed until a plan of reorganization adopted by its board of directors on December 26, 1933, was put into effect on May 7, 1934.
3. Under this plan, the depositors received for 50% of their claims, deposits of $1,808,700 in the reorganized trust company; plaintiff was released from liability as to the other 50%, and the depositors accepted, in lieu of one half of that 50% claims in the form of participation certificates in the sum of $903,896 against certain assets segregated and transferred to a corporate agent, the newly created Newark Mortgage Company, for liquidation; and in lieu of the remaining half of 50% of their claims amounting to $903,958.27, the depositors accepted redeemable Class B 3% Preferred Stock of a par value of $451,979.13, par $25 per share, redeemable at $50 per share, in the reorganized trust company.
4. Also as part of the plan of reorganization, an issue of $250,000 par value of redeemable Class A 5% Preferred Stock, prior in all respects to the Class B Preferred Stock, was sold at par to the Reconstruction Finance Corporation; and further Class B Preferred Stock of a par value of $75,000 was sold for $150,000 to the former shareholders of said trust company, the common stock being written down to a total stated value of $1 upon the books.
5. The condensed balance sheet of the reorganized Clinton Trust Company as at May 7, 1934, was as follows:
Resources
Cash on hand and due from banks ..................... $1,351,535.30 Stocks and securities ............................... 498,526.00 Bonds and mortgages ................................. 391,452.35 Loans and Discounts ................................. 996,629.45 Banking house, furniture and fixtures ............... 441,294.57 Other assets ........................................ 2,676.08 _____________ $3,682,113.75 Liabilities
Deposit liability ................................... $1,808,701.39 Special trust accounts .............................. 562,430.60 Class "A" Preferred stock (Par $250,000) Retirable at Par ................................. $ 250,000.00 Class "B" Preferred Stock (Par $526,979.13) Retirable at .................................. 1,053,958.27 Common stock (Par $700,000) Stated value ........................ 1.00 Undivided Profits ..................... 7,022.49 _____________ Total capital and undivided profits .............. 1,310,981.76 _____________ $3,682,113.75
6. The charter of plaintiff was also amended to provide in substance: that the common stock should not be entitled to vote or receive any dividends until all the Class "A" and "B" Preferred had been retired; that the holders of Preferred Stock "A" should be entitled to receive when and as declared by the board of directors out of net profits to be determined as therein provided cash dividends at the rate of 5% per annum; that subject to the provisions of sections 3 and 7 (hereinafter referred to) the holders of Preferred Stock "B" should be entitled to receive when and as declared by the board of directors out of net profits cash dividends at the rate of 3% of the par value thereof but that in no event should any such dividends be declared or set apart or paid in respect of such Preferred Stock "B" until all of the issued and outstanding shares of Preferred Stock "A" should have been retired. The amended charter provided the following in respect of the application of net profits:
Application of Net Profits
As long as any shares of preferred stock "A" are outstanding, the trust company, on or prior to each February 1 and August 1, shall apply the net profits, of the trust company, as determined in accordance with section 6 of this Article Fifth, for the six months' period ending on the next preceding December 31 or June 30, as the case may be, to the following purposes and in the following order of priority, and not otherwise:
(1) One-tenth of such net profits for said period shall be carried to a fund to be designated the "surplus fund" until such surplus fund shall amount to 20% of the capital stock of the trust company, and thereafter such surplus fund shall always be equal to 20% of the capital stock of such trust company, and whenever such surplus fund becomes impaired, it shall be reimbursed in the manner provided for its accumulation.
(2) To the payment of dividends on the outstanding preferred stock "A" accrued to such February 1 or August 1, as the case may be; provided, however, that after giving effect to the payment of such dividends, the unimpaired capital of the trust company is not less than the aggregate par value of the preferred stock of all classes at the time outstanding, or the minimum capital required by law, whichever sum is the greater.
(3) To the payment into the preferred stock "A" Retirement Fund (referred to in section 9 of this Article Fifth) of a sum equal to 40% of the remainder, if any, of such net profits, provided, however, that the aggregate amount paid into the preferred stock "A" Retirement Fund in any one year need not exceed 5% of the maximum aggregate par value of the preferred stock "A" at any time outstanding, whether or not any such stock shall have been subsequently retired or the aggregate par value thereof reduced in any manner whatsoever; provided further, however, that unless otherwise elected from time to time, by the trust company by action of its Board of Directors, it shall not be required to make such payment into the preferred stock "A" Retirement Fund except from such net profits as may have accrued from and after December 31, 1935; and
(4) To such lawful purposes as may be determined by the Board of Directors, subject, however, to the provisions of sections 4, 5 and 8 of this Article Fifth.
After all shares of Preferred Stock "A" shall have been retired, and as long as any shares of preferred stock "B" are outstanding, the trust company prior to each February 1 and August 1, shall apply such net profits to the following purposes and in the following order or priority, and not otherwise:
(1) One-tenth of such net profits for said period shall be carried to a fund to be designated as the "Surplus Fund" until such surplus fund shall amount to 20% of the capital stock of the trust company, and thereafter such surplus fund shall always be equal to 20% of the capital stock of such trust company, and whenever such surplus fund becomes impaired, it shall be reimbursed in the manner provided for its accumulation;
(2) To the payment of dividends on the outstanding preferred stock "B" accrued to such February 1 or August 1, as the case may be, provided, however, that after giving effect to the payment of such dividends, the unimpaired capital of the trust company is not less than the aggregate par value of the preferred stock of all classes at the time outstanding, or the minimum capital required by law, whichever sum is the greater.
(3) To the payment into the preferred stock "B" Retirement Fund (referred to paragraph 9 of this Article Fifth), to a sum equal to 40% of the remainder, if any, of such net profits; provided, however, that the aggregate amount paid into the preferred stock "B" Retirement Fund in any one year need not exceed 5% of the maximum aggregate par value of the preferred stock "B" at any time outstanding, whether or not any such stock shall have been subsequently retired or the aggregate par value thereof reduced in any manner whatsoever and
(4) To such other lawful purposes as may be determined by the Board of Directors, subject, however, to the provisions of sections 5 and 8 of this Article Fifth.
It was further provided that no Preferred Stock "A" or "B" should be called or purchased for retirement unless the unimpaired capital, surplus and undivided profits of the trust company should exceed $1,250,000 by an amount at least equal to the sum necessary to effect such retirement. Further provisions were made for the retirement of Preferred Stock "A" and "B" by purchase in event the financial standing of the company warranted it.
7. The Class A Preferred Stock was all redeemed at par plus accrued dividends on January 16, 1936, by arrangement with the Reconstruction Finance Corporation. Since that time dividend distributions have been made upon the Class B Preferred to the extent of 3% per annum on the par value thereof for the period from May 7, 1934, through April 1, 1940, this being at an annual rate of 1.5% upon the amount of the depositors' claims exchanged for said stock. None of said B stock has been redeemed.
8. Plaintiff duly filed Federal capital stock tax returns and paid tax thereon as follows: for the year ended June 30, 1934, on August 30, 1934, and paid $600 on that date; for the year ended June 30, 1935, on July 30, 1935, and paid $652 on that date, and $1,054 and interest of $94.79 on January 18, 1937; for the year ended June 30, 1936, on July 18, 1936, and paid $600 on that date; and for the year ended June 30, 1937, on July 8, 1937, and paid $559 on that date.
9. After the enactment of the Revenue Act of 1938, which in Section 818 amended the provisions of Section 22 of the Act of March 1, 1879, plaintiff on August 9, 1938, filed four claims for refund, one for each year, of the capital stock taxes paid as aforesaid for the years ended June 30, 1934, through June 30, 1937, in the respective amounts of $600, $1,706, $600 and $559, claiming the benefit of that Act as amended and on the ground, inter alia, that the payment of the taxes would diminish the assets necessary for the full payment of the claims of depositors. In connection with the filing on July 27, 1938, of its capital stock tax return for the year ended June 30, 1938, which showed a tax of $600, plaintiff filed a claim for immunity from the tax under the provisions of the Act of March 1, 1879, as amended.
10. The Commissioner of Internal Revenue in a registered Bureau letter dated May 26, 1939, after referring to the claims for refund for the taxable years ended June 30, 1934 to June 30, 1937, and the bases thereof, wrote: "With respect to your contention that the capital stock tax is unconstitutional, you are advised that inasmuch as the United States Supreme Court has not held the law imposing the capital stock tax to be unconstitutional, the Commissioner of Internal Revenue is clearly without authority to make the refund requested. Rejection of your claims for refund for each of the above years is therefore made in full on these grounds."
Further in this letter reference was made to the amendment of May 28, 1938, with the following comment: "Inasmuch as your claims for the refund of $600.00, $1,706.00, $600.00, and $559.00 paid for the years ended June 30, 1934 to June 30, 1937, inclusive, cover tax paid prior to May 28, 1938, the effective date of the amendment, the claims are also rejected on the ground that the bank is not entitled to the immunity claimed."
This letter further requested additional information in support of the claim for immunity for the year ended June 30, 1938. Additional information was filed by plaintiff's counsel by letter dated June 16, 1939, accompanied by a request for reconsideration of said refund claim.
11. A Bureau of Internal Revenue letter dated July 1, 1939, was addressed to plaintiff's counsel, Benjamin Bateman, acknowledging his letter of June 16, 1939. The Bureau letter said, in part: "You are further advised that the additional evidence submitted shows that the assessment and collection of the tax for the year ended June 30, 1938, would diminish the assets necessary for the full payment of the claims of the depositors and the claim for immunity from tax assessment and collection for that year is hereby allowed."
12. In connection with the filing on July 30, 1939, of its capital stock tax return for the year ended June 30, 1939, which showed a tax of $577, plaintiff filed a claim for immunity from said tax under the provisions of the Act of March 1, 1879, as amended, Internal Revenue Code § 3798, as further amended by Section 406 of the Revenue Act of 1939, 26 U.S.C.A. Int.Rev. Code, § 3798. A letter was addressed to the Commissioner of Internal Revenue from the attorney for the taxpayer under date of September 18, 1939. Receipt of this letter was acknowledged in a Bureau letter dated September 30, 1939. A Bureau letter dated November 27, 1939, requested additional information in reference to the claim for the year ended June 30, 1939; and substantially the same information that had previously been filed under date of June 16, 1939, was filed by plaintiff under date of December 6, 1939.
13. Thereafter, the Commissioner of Internal Revenue addressed to plaintiff a Bureau letter dated December 20, 1939. The letter advised plaintiff, in part, that the claims for refund for the years ended June 30, 1934, through June 30, 1937, "were rejected in Bureau letter of May 26, 1939, without consideration of their merits" and that said claims "are rejected in full"; that the claim for immunity for the year ended June 30, 1938, "is reopened and rejected"; that the claim for immunity for the year ended June 30, 1939, "is also rejected"; and that the taxes for the two latter years would be assessed. In a letter dated December 22, 1939, plaintiff filed further information and a request that the matter be reconsidered, to which a reply was made in a Bureau letter dated February 2, 1940.
14. The capital stock taxes for the years ended June 30, 1938, and June 30, 1939, were paid by plaintiff on February 5, 1940, in amounts of $600 with interest of $50.76 and $577 with interest of $11.31, respectively. Plaintiff on July 31, 1940, duly filed its capital stock tax return for the year ended June 30, 1940, and paid the tax of $639.10 shown thereon.
15. Plaintiff on February 25, 1941, filed three claims for refund, one for each year, of the capital stock taxes and interest paid as aforesaid for the years ended June 30, 1938 through June 30, 1940, in the respective amounts of $650.76, $588.31 and $639.10, claiming the benefit of the Act of March 1, 1879, as amended, and Internal Revenue Code, § 3798, as amended, 26 U.S.C.A. Int.Rev. Code § 3798, and on the ground, among other things, that the payment of said taxes would diminish the assets necessary for the payment of the claims of the depositors. The three claims were rejected in a registered Bureau letter dated May 2, 1941. The petition in the instant proceeding was filed on July 18, 1941.
16. The Class B Preferred Stock, issued to the depositors in the reorganization in May 1934, was worth not more than $15.00 per share at that time. From that time to the end of 1940, this stock sold in a market in a range from a low of $12 per share to a high of $21 per share, the first and last sales in this period being at $14 per share.
17. In connection with the reorganization in May 1934, it was anticipated that there would be unusually large withdrawals when the trust company would be reopened. In order to provide a cash fund to cover such withdrawals the Class A Preferred Stock mentioned in finding 4 was sold to the Reconstruction Finance Corporation. Contrary to expectation, when the bank reopened withdrawals were small and deposits were large; the extra cash fund proved to be unnecessary. After a time it was realized that the stock had served its purpose; and the Class A stock was retired by mutual agreement with the R.F.C. That retirement was not out of earnings but out of extra cash assets for which there was no further need.
18. The Class B Preferred Stock had a par value of $25 per share, but was redeemable at $50 per share; $50 being the amount of the claim of a depositor which was used in the reorganization to purchase one share at par of $25. In connection with the reorganization this preferred stock was carried on the books under two accounts: "Class B Preferred Stock, Par Value $25," a total amount of $526,979.13; and a so-called "Preferred Stock Retirement Fund," another account for the amount of $526,979.14. The second account at the date of the reorganization represented the excess of the face value of the claims released by the depositors in exchange for the stock over the par value of the stock.
19. By June 30, 1941, the second account had been reduced to about $506,000; the reduction of some $20,000 having been transferred to reserves set up at the suggestion of the supervising authorities to cover possible losses on assets that had been taken over from the old bank in the reorganization. Some of such reserves, about $6,000, had been set up from surplus and undivided profits, but the earnings had not been sufficient to cover all of the reserves suggested.
20. Dividends had been paid upon the Class A Preferred Stock up to the time it was redeemed on January 16, 1936. Thereafter dividends were paid upon the Class B Preferred at 3% per annum on the par value thereof for the period from May 7, 1934 through April 1, 1940. No dividends have been paid upon the common stock since the reorganization.
21. During the period from July 1936 up to December 31, 1940, plaintiff had set up out of earnings, in accordance with the formula described in finding 6 a total of $11,776.10 in the Class B retirement fund. Thereafter, and after the taxable years in question, certain reserves were set up at the suggestion of the supervising authorities to cover possible losses on assets that had been taken over from the old bank in their reorganization. It was then necessary to transfer the amounts set up in the Class B retirement fund to other reserves.
22. From the time of the retirement of the Class A Preferred stock in January 1936 up to June 30, 1941, the net worth of the plaintiff never reached $1,250,000; the highest amount during that period being slightly more than $1,100,000 on June 30, 1939.
The plaintiff is a New Jersey trust company, a substantial portion of the business of which, during the period here in question, consisted of receiving deposits and making loans and discounts. Due to insolvency it closed on March 4, 1933, and remained closed until May 1934, at which time a plan of reorganization previously adopted by its Board of Directors was put into effect.
Under this plan the trust company, as reorganized, was to reopen for business, and the former depositors were to be credited with deposits of 50% of their former deposits. As to the other 50%, the depositors released plaintiff from liability, accepting in exchange for the release (1) participating certificates in certain assets transferred to a corporate agent of plaintiff for liquidation, each depositor's certificate being for one-half of the released 50% of his deposit and (2) such number of shares of redeemable Class B 3% preferred stock in plaintiff company as reorganized, par value $25 per share, redeemable at $50 a share, as would make a par value of one-half of that one-fourth of the depositor's claim not covered by the other provisions described above. To illustrate, one having $200 on deposit when the bank closed received, in the reorganization a deposit of $100, a participation certificate in the liquidation of certain transferred assets for $50, and one $25 par value share of Class B preferred stock. Each $25 share had an actual market value of about $15 a share at the time these shares were given to the depositors. The reorganization plan called also for the amendment of plaintiff's corporate charter to provide, so far as here relevant, that one tenth of the net profits of the company should be placed in a surplus fund, that next the holders of the B preferred stock should be entitled to a cash dividend of 3% per annum, and that 40% of the remainder, if any, of such net profits should be placed in the B preferred stock retirement fund. That stock was, as we have said, of a par value of $25 per share, and redeemable at $50 per share.
From July 1936, to December 31, 1940, the plaintiff had paid the 3% dividends on the preferred stock and had out of earnings placed some eleven thousand dollars in the B stock retirement fund. That money was, after the tax years here in question, on the suggestion of public banking authorities, transferred to other reserves and none of the B stock was redeemed.
The plaintiff filed federal capital stock tax returns for the years ending June 30, 1934, 1935, 1936 and 1937, and paid taxes accordingly. After the Revenue Act of 1938 was enacted, plaintiff filed claims for the refund of these taxes, on the ground that that Act authorized such claims, and on the ground that the capital stock tax was unconstitutional. With its return for the year ending June 30, 1938 plaintiff filed a claim for immunity from the tax for that year on the ground of the 1938 Act. Plaintiff relied then and now relies on Section 3798 of the Internal Revenue Code, which is Section 22(a) of the Act of March 1, 1879, as amended 26 U.S.C.A. Int.Rev. Code, § 3798. The text of the section (26 U.S.C.A., Int.Rev. Code, § 3798) is in the footnote.
§ 3798. Exemption of insolvent banks from tax.
"(a) Whenever and after any bank or trust company, a substantial portion of the business of which consists of receiving deposits and making loans and discounts, has ceased to do business by reason of insolvency or bankruptcy, no tax shall be assessed or collected, or paid into the Treasury of the United States on account of such bank, or trust company, which shall diminish the assets thereof necessary for the full payment of all its depositors; and such tax shall be abated from such national banks as are found by the Comptroller of the Currency to be insolvent; and the Commissioner of Internal Revenue, when the facts shall appear to him, is authorized to remit so much of the said tax against any such insolvent banks and trust companies organized under State law as shall be found to affect the claims of their depositors.
"(b) Whenever any bank or trust company, a substantial portion of the business of which consists of receiving deposits and making loans and discounts, has been released or discharged from its liability to its depositors for any part of their claims against it, and such depositors have accepted, in lieu thereof, a lien upon subsequent earnings of such bank or trust company, or claims against assets segregated by such bank or trust company or against assets transferred from it to an individual or corporate trustee or agent, no tax shall be assessed or collected, or paid into the Treasury of the United States on account of such bank, or trust company, such individual or corporate trustee or such agent, which shall diminish the assets thereof which are available for the payment of such depositor claims and which are necessary for the full payment thereof.
"(c)(1) Any such tax collected, whether collected before, on, or after the date of enactment of the Revenue Act of 1938, shall be deemed to be erroneously collected, and shall be refunded subject to all provisions and limitations of law, so far as applicable, relating to the refunding of taxes.
"(2) Any tax, the assessment, collection, or payment of which is barred under subsection (a) of this section, or any such tax which has been abated or remitted after May 28, 1938, shall be assessed or reassessed whenever it shall appear that payment of the tax will not diminish the assets as aforesaid.
"(3) Any tax, the assessment, collection, or payment of which is barred under subsection (b) of this section or any such tax which has been refunded after May 28, 1938, shall be assessed or reassessed after full payment of such claims of depositors to the extent of the remaining assets segregated or transferred as described in subsection (b).
"(4) The running of the statute of limitations on the making of assessment and collection shall be suspended, during, and for ninety days beyond, the period for which, pursuant to this section, assessment or collection may not be made, and a tax may be reassessed as provided in paragraphs (2) and (3) of this subsection, and collected, during the time within which, had there been no abatement, collection might have been made.
"(d) This section shall not apply to any tax imposed by subchapter A or subchapter C of chapter 9."
The Commissioner of Internal Revenue wrote plaintiff on May 26, 1939, rejecting plaintiff's claimed ground of refund for the years 1934 to 1937 that the tax was unconstitutional, and further saying "Inasmuch as your claims for the refund of $600.00, $1,706.00, $600.00, and $559.00 paid for the years ended June 30, 1934 to June 30, 1937, inclusive, cover tax paid prior to May 28, 1938, the effective date of the amendment, the claims are also rejected on the ground that the bank is not entitled to the immunity claimed."
The letter requested further information about the plaintiff's claim for immunity for 1938. That information was furnished, and a request for a reconsideration of the refund claim for the prior years was made. On July 1, 1939, a Bureau letter was sent to plaintiff allowing plaintiff's claim for immunity for the year ending June 30, 1938, on the ground that the payment of the tax "would diminish the assets necessary for the full payment of the claims of the depositors."
On July 30, 1939, the plaintiff, in connection with the filing of its capital stock tax return for the year ended June 30, 1939, again filed a claim for immunity from the tax for that year. Further information was requested by the Bureau and was furnished. On December 20, 1939, the Commissioner wrote plaintiff that its claims for refund for the years 1934 to 1937 had been "rejected in Bureau letter of May 26, 1939, without consideration on their merits," and that those claims "are rejected in full"; that the claim for immunity for 1938 "is reopened and rejected", and that for 1939 "is also rejected" and that the taxes for those two years would be assessed. Plaintiff in 1940 paid the taxes for those years and for 1940, and sues here for the return of the taxes for all the years from 1934 to 1940.
The defendant urges that the plaintiff is, as to the taxes paid for the years 1934 to 1937, barred by the Statute of Limitations, Section 3772 of the Internal Revenue Code, 26 U.S.C.A. Int.Rev. Code, § 3772, which provides that suits may not be brought "after the expiration of two years from the date of mailing by registered mail by the Commissioner to the taxpayer of a notice of the disallowance of the part of the claim to which such suit or proceeding relates." It says that the Bureau letter of May 26, 1939, set the two-year limitation running, and that therefore this suit, filed July 18, 1941, came too late. Plaintiff claims that the statute did not begin to run until the Commissioner's letter of December 20, 1939, was mailed.
We think the defendant is right as to this point. The Commissioner's letter of May 26, 1939, placed the rejection upon an obviously untenable ground. It rejected the claims on the ground that the taxes had been paid before the effective date of the 1938 amendment, though the statute said in paragraph (c)(1) that "any such tax collected, whether collected before, on, or after the date of enactment of the Revenue Act of 1938, shall be deemed to be erroneously collected, and shall be refunded * * *." When the Commissioner sent this letter, plaintiff must have felt certain that it could obtain a reconsideration by the Commissioner and a more intelligent treatment of its claims. In this effort it succeeded, though the claims were ultimately rejected.
But paragraph (a)(3) of Section 3772 provides that "any consideration, reconsideration, or action by the Commissioner with respect to such claim following the mailing of a notice by registered mail of disallowance shall not operate to extend the period within which suit may be begun." What occurred here was that the Commissioner reconsidered the claims and placed their rejection upon a more tenable ground. But that did not toll the statute.
Plaintiff claims that the Commissioner here, by his May 26 letter, rejected only a part of the claim, and that his letter of December 20 rejected another part, and therefore the statute did not begin to run as to the latter part, until the December date, according to paragraph (a)(2). We think that the expression "part of the claim", in the statute, refers to a part of the money involved in the claim, and not to one or more but less than all the grounds of the claim. There would be no necessity for mention in the statute of a "part of the claim" in the sense in which plaintiff would have us understand it. If, for example, a taxpayer, in his claim for refund, set up three grounds or reasons why he should get his money back, and the Commissioner wrote him that he had considered grounds (1) and (2) and that, so far as they were concerned, the claim was disallowed, that would not be the "disallowance" of the claim which would set the statute running. It would rather be a statement that the Commissioner had not yet completed his consideration of the claim. If he later disallowed the claim on the third ground also, that would not be a disallowance of a part of the claim, but the first disallowance of the whole claim. The statute would run from that time.
In the instant case the Commissioner did not, in his May 26 letter, reserve any question for further consideration and thus prevent that letter from being a "disallowance". He merely gave a bad reason for his disallowance. Later he reconsidered and gave a better reason, but his reconsideration could not, under the statute extend the period of limitation. We therefore reach the merits of the case only as to the years 1938, 1939, and 1940.
On the merits of the claims for those years, we think the plaintiff is not entitled to recover. We recognize that the policy of the statute on which plaintiff bases its claim is that the United States does not, as a tax gatherer, desire to compete with the disappointed depositors of an insolvent bank, and that it is willing to defer the collection of its taxes in order to make available to such depositors money which, by certain arrangements with the other persons interested in the bank, has been set aside for the depositors. This Court said many years ago in Johnston v. United States, 17 Ct.Cl. 157, 171, that this remedial statute should be construed liberally and we agree. We have already quoted the statute. Turning to paragraph (b) of Section 3798 we find that plaintiff's depositors did discharge plaintiff from its liability to them. The questions then are (1) did the depositors accept, in lieu of that liability, a "lien" upon subsequent earnings of plaintiff and (2) if so, did the collection of the taxes here in question "diminish the assets" which were "available for the payment of such depositor claims and which are [were] necessary for the full payment thereof."
We think that the plan of reorganization agreed to by the depositors and the stockholders under which the stockholders other than the depositor holders of the Class B preferred stock agreed to forego any rights which they might otherwise have had to share in certain of the net earnings of the corporation, gave the holders of the B stock a "lien" upon those earnings within the meaning of the statute. The statute speaks of a "lien upon subsequent earnings." It is hard to see how Congress could have meant by this expression anything more than a preferential right in such earnings, made superior, by the reorganization agreement, to rights which other persons would have had but for the agreement. Congress cannot have intended a "lien" in the sense of a security interest in existing property or in existing rights against third persons, as there could hardly be a lien in that sense upon subsequent earnings.
As to the second question, we think that plaintiff has not shown that the collection of the capital stock taxes did diminish the plaintiff's assets which would otherwise have been available for the payment of the depositors. The arrangement was, as we have seen, that for $50 of his former $200 deposit, to revert to the illustration used above, a depositor received one share of Class B preferred stock, par value $25, market value $15, redemption value $50, and a right that 40% of 90% of the net earnings should be placed in the redemption fund. The statute does not permanently forswear the collection of taxes for the benefit of depositors of an insolvent bank. It only defers their collection to the extent to which the tax money goes to pay the depositors. The bank and its owners are not intended to gain or the Government to lose taxes as a result of the application of the statute. 26 U.S.C.A. Int. Rev. Code, § 3772(c) (3). The taxes are therefore collectible, and collectible immediately, out of any part of the earnings of the bank which, if not paid out for taxes, would still not be paid to the depositors. Here the 10% first taken out of earnings and placed in a reserve would be in that category, as would also be the 60% of the remaining 90% of earnings left after the other 40% of that 90% had been placed in the redemption fund for the depositors' Class B preferred stock. Whether the reorganization agreement contemplated, as it probably did, that the "net earnings" upon which these percentages should be based were after taxes, or not, plaintiff has not shown to what extent the payment of the taxes diverted money which would otherwise have gone into the depositors' fund. If the tax is made entirely uncollectible, for the time being, as plaintiff claims, because some unproved part of the uncollected tax will go for the benefit of the depositors, it is apparent, upon the percentages present here that owners other than the depositors are, temporarily, benefiting more from the application of the statute than the depositors are. Congress could not have intended that.
We conclude, therefore, that plaintiff is not entitled to recover, and that its petition should be dismissed. It is so ordered.
WHALEY, C.J., and WHITAKER and LITTLETON, JJ., concur.
JONES, J., took no part in the decision of this case.