Opinion
No. 10706.
Argued November 3, 1952.
Decided November 26, 1952.
Benjamin Harrow, Sr., New York City (Schenck, Price, Smith King, Morristown, N.J., Arthur L. Harrow, New York City, Harold A. Price, Morristown, N.J., on the brief), for appellant.
Joseph F. Goetten, Sp. Asst. to Atty. Gen. (Ellis N. Slack, Acting Asst. Atty. Gen., Lee A. Jackson and Joseph F. Goetten, Sp. Assts. to Atty. Gen., Grover C. Richman, Jr., U.S. Atty., and Roger M. Yancey, Asst. U.S. Atty., Newark, N.J., on the brief), for appellee.
Before MARIS, GOODRICH and HASTIE, Circuit Judges.
This is an appeal by the plaintiff from a judgment of the district court dismissing its action brought to recover federal estate tax alleged to have been erroneously exacted by the Collector from the estate of the plaintiff's decedent, Henry W. Williams, who died January 30, 1936. Two questions are involved. The first is whether certain annuity contracts purchased by the decedent payable to himself during his life and after his death to his wife if she should survive him were subject to estate tax as transfers of property "intended to take effect in possession or enjoyment at or after his death" under Section 302(c) of the Revenue Act of 1926, as amended, 26 U.S.C.A. § 811(c). If the first question is answered in the affirmative the second question arises. It is whether the plaintiff is precluded from obtaining a refund of estate tax otherwise admittedly due it, in view of the fact that it has not actually overpaid its tax when one considers its entire estate tax liability, including the tax due with respect to the annuity contracts in question the assessment and collection of which is now barred by the statute of limitations. The district court answered both questions in the affirmative and dismissed the complaint. We are in complete agreement with the conclusions thus reached by the district court for the reasons ably stated in the opinion filed by Chief Judge Forman, 104 F. Supp. 621, to which we need add nothing.
The judgment of the district court will be affirmed.