
    No. 19-77.
    September 30, 1977
    Oscar Mayer & Co., Inc. (PA.)
    -On September 30, 1977 the court entered the following order:
    
      
      Edward C. Rustigan, attorney of record, for plaintiff. Mayer, Brown & Platt, of counsel.
    
      Allan C. Lewis, with whom was Assistant Attorney General M. Carr Ferguson, for defendant. Theodore D. Peyser and Donald H. Olson, of counsel.
    Before Davis, Judge, Presiding, Nichols and Kashiwa, Judges.
    
   "This tax refund suit is before the court on defendant’s motion for summary judgment under Rule 101. Defendant contends that plaintiff-taxpayer failed to file a timely refund claim. Plaintiff has not filed a response to said motion of defendant..

"On July 18, 1974, taxpayer filed an amended return for the fiscal year ending October 31, 1970, which reflected an additional loss of $130,103 of that previously reported. On the same date taxpayer filed a claim for refund, attempting to carry this loss back to its fiscal year 1968. That claim for refund, however, was untimely under 26 U.S.C. § 6511(d)(2)(A) (1970) which states:

(A) Period of limitation. — If the claim for credit or refund relates to an overpayment attributable to a net operating loss carryback, in lieu of the 3-year period of limitation prescribed in subsection (a), the period shall be that period which ends with the 15th day of the 40th month (or the 39th month, in the case of a corporation) following the end of the taxable year of the net operating loss or net capital loss which results in such carryback, * * *.

The above provision requires, in the case of a corporation, that the claim be filed by the 15th day of the 39th month following the end of the taxable year of the net operating loss. As applied to the facts in this case, therefore, the claim for 1968 taxes, based upon a 1970 net operating loss, must have been filed by February 15, 1974. The actual filing date by the taxpayer was some five months after that. Therefore,

"it is ordered that without oral argument, upon consideration of defendant’s motion, defendant’s request of summary judgment is granted. Plaintiffs petition is dismissed.”  