
    ANDREW KJAR, ALIAS PETER ORLOFF, KATHERINE D. KJAR, MAIDEN NAME KATHERINE D. ORLOFF, AND ESTER HARLEY SHARON, SEVERALLY AND JOINTLY, v. THE UNITED STATES
    [No. 46067.
    Decided February 3, 1947.
    Plaintiffs’ motion for new trial allowed in part and overruled in part May 5, 1947.] 
    
    
      
      Mr. Andrew Kjar in propria persona.
    
    
      Mr. Joseph E. Sheppard, with whom was Mr. Assistant Attorney General Douglas W. McGregor, for the defendant. Messrs. J. Louis Monarch and Andrew D. Sharpe were on the brief.
    
      
      Plaintiff’s petition for writ of certiorari pending.
    
   Whitaker, Judge,

delivered the opinion of the court:

Plaintiffs, Andrew Kjar and wife, Katherine D. Kjar, sue the United States to recover income taxes and penalties alleged to have been erroneously assessed and collected for the years 1928-1930, both inclusive. Andrew Kjar also sues to recover income taxes alleged to have been erroneously assessed against him alone for the years 1931 and 1932. They also sue because they say their property was seized and sold under allegedly erroneous assessments of taxes and sold for a price much less than their true value.

Ester Harley Sharon sues because she says her property was levied on and sold as the transferee of the Kjars in order to satisfy the allegedly erroneous assessments, that she was not liable as transferee, and that her property was sold for much less than its true value.

Plaintiffs were represented by Andrew Kjar in person. The petition is vague and uncertain, but the foregoing seems to be the basis of plaintiffs’ claim.

The defendant has filed a counterclaim seeking to recover taxes and customs duties on the importation of distilled spirits during the years 1928-1932, both inclusive, and their diversion for beverage purposes.

Andrew Kjar and his wife failed to file income tax returns for the years 1928 to 1932, both inclusive. Acting under the authority of section 3176 of the Revised Statutes the Collector of Internal Revenue prepared for them returns for the years, 1928, 1929 and 1930, and asserted against them a total of $57,165.95 in taxes, and $43,474.48 as penalties. He also asserted against Andrew Kjar alone deficiencies in taxes for the years 1931 and 1932 in the amount of $27,539.84, and penalties for those years of $19,654.91. Jeopardy assessments of these taxes and penalties were made in March 1939. Subsequently, distraint warrants were issued and were levied on the properties of these plaintiffs, and their properties were sold in part satisfaction of the foregoing assessments of taxes and penalties.

In addition, the Commissioner made jeopardy assessments against plaintiff, Ester Harley Sharon, as the transferee of the Kjars, for the amount of the taxes and penalties assessed against Andrew Kjar and his wife for the years 1928, 1929 and 1930, and subsequently property belonging to her.was seized under distraint warrants and sold at public auction for the total sum of $4,430.00.

All three of these taxpayers filed an appeal to the Board of Tax Appeals from the assessment of these taxes and penalties. The Board found that Ester Harley Sharon was not liable as a transferee for the income taxes assessed against her, and it found that neither Andrew Kjar nor his wife was liable for income taxes for the years 1929, 1931 and 1932, and that they had overpaid their taxes for the years 1928 and 1930 in the amount of $16,025.59.

The amount realized from the sale of the property of Ester Harley Sharon was refunded to her with interest in the total amount of $5,394.75: Checks were issued in favor of Andrew Kjar and his wife for the amount of the overpayments found by the Board. These checks, however, were not delivered to Kjar and his wife, but the amount of .them was credited by the Collector against distilled spirits taxes assessed against Andrew Kjar for the years 1928 to 1932, both inclusive.

From the foregoing recital it is apparent that Ester Harley Sharon has no cause of action against the defendant, since the amount realized from the wrongful sale of her property has been refunded to her, unless her property was sold for an inadequate price and this court has jurisdiction to render judgment on account thereof. However, we do not need to determine whether or not we have such jurisdiction because there is no proof in the record as to the value of her property which was sold. She is not entitled to recover.

The credit of the. overpayment of income taxes for the years 1928 and 1930 against the distilled spirits tax assessed against Andrew Kjar was correct, since there is no proof to show that these assessments were erroneous. It is true the Commissioner of this court finds only that “substantial quantities of whisky” were imported by Kjar in 1928 and 1930, and that he does not find the amount of the importations; however, the assessment of the Commissioner of Internal Revenue is presumptively correct; that is to say, the burden is on the plaintiff, Andrew Kjar, to show that it is incorrect, and this the plaintiff has wholly failed to do.

We are not unmindful of the fact that the Board of Tax Appeals found that during the year 1928 Kjar had imported only 2,566 cases of liquor (approximately 7,143 gallons), whereas the assessment of the Commissioner of Internal Revenue is based upon the importation of 16,800 gallons from June 1928 to January 1929. It is also true that the Board found that Kjar imported during the year 1930, 750 cases (approximately 2,250 gallons), and that for the years 1929, 1931 and 1932 he had not realized sufficient income to subject him to income tax liability for those years; whereas the Commissioner of Internal Revenue found that during the years 1929 to 1932 he had imported 92,153 gallons.

However, we do not think that in this proceeding the Government is estopped by the judgment of the Board of Tax Appeals. The issue before the Board was the income realized by the taxpayers in these years. This was determined by it upon the basis of the amount of liquor sold by them and the cost to them of the liquor sold. However, the distilled spirits tax levied by section 900 of the Revenue Act of 1926 was levied on distilled spirits then in bond “or that have been or that may be hereafter produced in or imported into the United States.” Liquor could be produced in or imported into the United States without subjecting the producer or the importer to income tax liability and, therefore, the amount of liquor imported or produced by the taxpayer was not at issue in the proceeding before the Board. In a subsequent proceeding between the same parties on a different cause of action they are estopped to dispute only those facts determined in a previous proceeding which were material to the determination of the issues presented therein. Cromwell v. County of Sac, 94 U. S. 351; Southern Paoific Railroad Co. v. United States, 168 U. S. 1; Tait v. Western Maryland Railway Co., 289 U. S. 620. Since in the issue before the Board of Tax Appeals it was not necessary for that Board to determine the amount of liquor produced or imported in the years in question, its finding on that fact does not estop the parties in this proceeding.

Moreover, we do not think that this finding of the Board of Tax Appeals overcomes the presumptive correctness of the finding of the Commissioner of Internal Revenue, for the same reason. Since it was not necessary for the Board to determine the amount of liquor produced or imported by the taxpayer, it is not to be presumed that the Board gave careful consideration to a determination of this fact, and for this reason we cannot say that its determination of this fact is sufficient to overcome the presumptive correctness of the determination of the Commissioner of Internal Revenue, who was compelled to make a determination of this fact as accurately as possible in order to correctly assess these taxes.

It is also true that the checks for the overpayment of income taxes for the years 1928 and 1930 were issued in favor of Andrew Kjar and his wife Katherine D. Kjar, and that the full amount of them was credited to distilled spirits taxes which had not been assessed against Mrs. Kjar, but against her husband and other individuals associated with him. Notwithstanding this, however, Mrs. Kjar has not shown the amount of this overpayment to which she may be entitled and, therefore, for the want of proof her claim cannot be sustained.

The defendant in its counterclaim seeks to recover distilled spirits taxes of $6.40 a gallon, on the theory that these distilled spirits were diverted to beverage purposes, and it also seeks to recover customs duties of $5.00 a gallon on these distilled spirits, on the theory that they were smuggled into the United States without the payment of the customs duties due thereon. The defendant is not entitled to recover these amounts. It is true the assessment list on which these taxes were assessed shows that the assessment was made on “D S importation and diversion,” or a similar expression. However, the tax assessed by the Commissioner was not that which should have been assessed on distilled spirits imported and diverted for beverage purposes. The assessment was of the non-beverage tax of $1.10 a gallon. The Commissioner of Internal Revenue was evidently of the opinion that there was insufficient basis for the assessment of the tax on liquors diverted for beverage purposes. At any rate, the assessment of the tax of $1.10 and his finding that the liquors were imported and diverted is contradictory and, hence, forms no basis for the rendition of a judgment by this court. John J. McClure v. United States, 98 C. Cls. 381, 391.

The defendant is entitled to a judgment for the non-beverage tax, less the amount of the credit for overpayment of income taxes to which the plaintiffs Andrew Kjar and Katherine D. Kjar are entitled, which amount is $100,685.11, plus interest as allowed by law. Judgment for this amount will be entered in favor of the defendant'against the plaintiff Andrew Kjar. Plaintiffs’ petition will be dismissed. It is so ordered.

Mr. Henry H. Taylor, Jr., for the plaintiffs.

Mr. J. H. Sheppard, with whom was Acting Assistant Attorney General Sewall Key, for the defendant.

Madden, Judge; Jones, Judge; and Littleton, Judge, concur.

Whaley, Chief Justice, took no part in the decision of this case.

ON MOTION EOR NEW TRIAL

(Decided May 5, 1947)

Whitaker, Judge,

delivered the opinion of the court:

I

In finding 7 of our findings of fact and opinion rendered February 3,1947, we found that lot 11, in block 3, San Marco Island, Florida, on which a distraint warrant was levied to satisfy jeopardy assessments against Andrew Kjar and his wife, Katherine D. Kjar, were recorded in the names of Peter Orloff and Katherine D. Orloff, aliases of the Kj ars.

Katherine D. Kjar has filed a motion for a new trial alleging that it was error to find that this property was recorded in the names of Peter Orloff and Katherine D. Orloff because in fact it was recorded under the name only of Katherine D. Orloff, alias for Katherine D. Kjar.

The commissioner found that this property was recorded in the name of Peter Orloff and Katherine D. Orloff and, since no exceptions were filed to this finding of the commissioner, the court made a similar finding. Rule 46; Schmoll v. United States, 105 C. Cls. 415, 456.

The commissioner’ finding was apparently based upon the testimony of Laurie W. Tomlinson, who testified that the property was recorded in the names of “Peter Orloff and Katherine D. Orloff who were alias Andrew Kjar and Katherine D. Kjar.” However, plaintiff introduced the original deed from James A. Pulían and his wife, Kitty M. Pulí-an, to Katherine-D. Orloff, showing that Katherine D. Orloff was the sole grantee. This was admitted without objection. The deed is dated August 12, 1933. It is recorded in Book 1533, page 347, of the Clerk of the Circuit Court for the County of Dade, State of Florida. Presumably this is the last recorded transfer of this property. Defendant has not shown otherwise.

It would appear, therefore, that our finding was in error.

Plaintiffs in this suit were represented by Andrew Kjar in person, who stated that he appeared in person because of his inability to secure counsel to represent him. Under the circumstances we think it proper to inquire into the accuracy of the commissioner’s finding, notwithstanding plaintiffs’ failure to file exceptions thereto.

We are satisfied that his finding and our finding, based upon it, were erroneous. The third sentence of finding 7 will be amended to read as follows:

When the taxes were not paid, warrants for distraint were issued and the Collector seized improved property designated at lot 11, block 3, San Marco Island, Florida, recorded in the name of Katherine D. Orloff, which was an alias for Katherine D. Kjar.

Otherwise the finding will staind.

Plaintiff, Katherine D. Kjar, also alleges that we erred in holding that, “Mrs. Kjar has not shown the amount of this overpayment to which she may be entitled and, therefore, for the want of proof her claim cannot be sustained.”

The basis for this holding was our finding that the property upon which this distraint warrant was levied was recorded in the name of Peter Orloff and wife Katherine D. Orloff. Now that it appears that the property was recorded in the name of Katherine D. Orloff, there is sufficient proof that this plaintiff is entitled to as much as $6,000 of the overpayment. She will have judgment against the United States for this amount.

She is not entitled to recover the market value of her property that was seized. It was levied upon and sold pursuant to an assessment made by the Commissioner of Internal Revenue pursuant to authority granted by law. All proceedings were in due form of law. It is true that the assessment was erroneous and consequently that the levy and sale of the property pursuant to the assessment was erroneous; however, when the Government returns to the taxpayer whose property has been erroneously seized and sold the amount it has received for the property, it has discharged the full responsibility placed upon it by law. There is no provision of law which casts upon a Collector the duty to realize from a sale of property its full market value, and which makes the United States liable if he fails to do so.

This is not only the extent of the liability placed upon it by Acts of Congress, but it is also the extent of any contract obligation which may be implied in fact. Certainly no contract can be implied in fact under which the United States agrees to refund to a taxpayer the full market value of property seized and sold, where the assessment under which it is seized and sold turns out to be erroneous.

Insofar as is material here, this court’s jurisdiction is limited to claims founded upon the Constitution or any law of Congress, or upon a contract, express or implied, or for damages “in cases not sounding in tort.” If plaintiff has a claim at all against the United States on account of the failure of the Collector to realize the full market value for her property, it would be a claim sounding in tort. Cf. Mann v. United States, 32 C. Cls. 580.

The extent of its obligation is to return the money realized from the sale.

Judgment will be entered in favor of Katherine D. Kjar in the amount of $6,000.00. The conclusion of law heretofore entered will be amended accordingly.

II

Ester Harley Sharon also files a motion for a new trial, in which she asks the court to find the market value of her property which was seized, and to award her a judgment for the difference between that amount and the amount heretofore refunded to her. For the reasons stated in answer to the similar motion of the plaintiff, Katherine D. Kjar, Ester Harley Sharon’s motion is overruled.

Ill

Andrew Kjar files a motion for a new trial on the ground that the court erred in holding that the Government was not estopped by the judgment of the Board of Tax Appeals and that this judgment did not overcome the presumptive correctness of the assessment of distilled spirits taxes by the Commissioner of Internal Revenue. For the reasons stated in the opinion heretofore filed, this motion is overruled.

In' computing the amount of the judgment to which defendant was entitled on its counterclaim, we allowed Andrew Kjar credit for the full amount of the overpayment of income taxes assessed against him and his wife. Having given Katherine D. Kjar judgment for $6,000.00 of this overpayment, defendant will have judgment on its counterclaim for $106,685.11, instead of $100,685.11 as heretofore entered.

The findings and conclusion of law are amended as herein-before set out; otherwise they will stand. It is so ordered.

Madden, Judge/ Jones, Judge/ and Littleton, Judge, concur.

Whaley, Chief Justice, took no part in the decision of this case.  