Opinion
No. 17526.
February 28, 1927.
Goldman Altman, of San Francisco, Cal., and McClymonds Wells, of Oakland, Cal., for plaintiff.
George J. Hatfield, U.S. Atty., and Thomas J. Sheridan, Asst. U.S. Atty., both of San Francisco, Cal.
At Law. Action by Cynthia R. Talcott, executrix of will of Jonathan R. Talcott, deceased, against the United States. Judgment for defendant.
Plaintiff seeks recovery of federal estate taxes alleged to have been erroneously assessed and paid, and defendant, resisting, counterclaims for like taxes alleged to have been erroneously refunded.
The complaint was filed March 27, 1926, and the counterclaim, December 16, 1926.
Trial is had upon the following agreed statement of facts:
December 8, 1919, plaintiff's testate died, her husband. His estate consisted of community property, which for taxation plaintiff returned in amount $323,671.58; and November 23, 1920, she paid said federal estate taxes thereon in amount $8,446.87. Thereafter, the Commissioner of Internal Revenue determined the amount of the taxable estate to be $351,251.92, and July 27, 1922, plaintiff thereon paid additional taxes in amount $1,103.51.
September 9, 1925, plaintiff applied for refund of taxes, on the ground that only one-half of an estate consisting of community property is so far the property of the husband as to be subject to said taxes. The Commissioner, conceding the point, granted refund of the second payment by plaintiff made, but denied it in respect to the first payment, for that it was barred by the four years' limitation of section 3228(a), R.S. (as amended 43 Stat. 342 [26 USCA § 157; Comp. St. § 5951]), and March 17, 1926, the refund granted was paid to plaintiff.
Herein the court finds for defendant and against plaintiff, and that defendant is entitled to recover of and from plaintiff the amount of the former's counterclaim, interest, and costs. Judgment accordingly. Stewart v. Stewart, 199 Cal. 318, 249 P. 197, and U.S. v. Robbins, 269 U.S. 315, 46 S. Ct. 148, 70 L. Ed. 285, foreclose all argument, supersede Wardell v. Blum (C.C.A.) 276 F. 226, and require the conclusion herein.
In respect to limitations, the counterclaim is for money paid by mistake, to which the statutory limitations for collection of taxes have no application, to which is no limitation.