
    HARRY RED EAGLE AND MARY RED EAGLE v. THE UNITED STATES
    [No. 352-59.
    Decided March 7, 1962.
    Defendant’s motion for rehearing denied May 9, 1962]
    
      Marvin J. Sonoshy for plaintiffs.
    
      Philip B. Miller, with whom was Assistant Attorney General Louis F. Oberdorfer, for defendant. Edward S. Smith and Eugene Emerson were on the brief.
   Per Curiam:

This case was referred pursuant to Rule 45(a) to Trial Commissioner Marion T. Bennett, with directions to make findings of fact and recommendations for conclusions of law. The commissioner has done so in a report filed July 27, 1961. Plaintiffs elected to submit the case on the commissioner’s report without brief. Defendant filed its exceptions to the commissioner’s report and brief and the case was submitted to the court on oral argument by counsel for the parties. Since the court is in agreement with the findings and recommendations of the trial commissioner, as hereinafter set forth, it hereby adopts the same as the basis for its judgment in this case. Therefore, the plaintiff Harry Red Eagle is entitled to recover, and judgment, together with interest as provided by law, will be entered in his favor in the sum of $334.82. Since the plaintiff Mary Eed Eagle is not entitled to recover because she did not exhaust her administrative remedies by filing a claim for refund, the petition as to her will be dismissed.

It is so ordered.

OPINION OP THE COMMISSIONER

Plaintiffs in this income tax refund case are husband and wife and are fullblood, adult, noncompetent Osage Indians. Each had, during the period involved in the suit, an interest in the Osage tribal trust fund by virtue of both an original headright and an inheritance interest. During the year 1951 Harry Eed Eagle’s income totaled $2,515.55, of which $1,602.58 represented headright income. Mary Eed Eagle’s income totaled $2,192.80, of which $2,048.24 represented headright income. This income was collected by an authorized agent of the Secretary of the Interior and credited to each taxpayer’s trust account from which disbursements were periodically made when approved by defendant.

A joint Federal income tax return for the plaintiffs for the calendar year 1951 was prepared and filed on March 15, 1952, by or under the supervision of the Superintendent of the Osage Indian Agency. The return reflected a total tax liability of $129.82. This sum was paid by defendant by taking from the trust account of Harry Eed Eagle the sum of $334.82 and $395 from the trust account of Mary Eed Eagle. Mary filed no claim for refund but Harry filed one on June 15, 1959. His claim was formally disallowed on July 16, 1959, and this suit followed. There is no issue raised respecting income from sources other than headrights.

Except as here shown, the facts of this case are similar to those of Hayes Big Eagle, et al. v. United States, in which findings and an opinion were filed today, ante, p. 665. The instant case raises all of the legal issues discussed in Hayes Big Eagle. It presents no additional issues, for the court on January 29, 1960, denied defendant’s motion to dismiss the petition on the ground that the claim for refund was not timely filed as required by the Internal Revenue Code.

The opinion filed in Hayes Big Eagle effectively disposes of the companion issues in the instant case and that opinion is here adopted by reference for this purpose. Plaintiff Harry Red Eagle is entitled to recover. Mary Red Eagle did not exhaust her administrative remedies by filing a claim for refund, and, therefore, is not entitled to recover.

EINDINGS OK EACT

1. At all times herein material, petitioners were husband and wife and were adult, fullblood, Osage Indians. Each was dully enrolled as one of the 2,229 enrollees on the final roll approved pursuant to section 1 of the Osage Allotment Act of June 28, 1906, 34 Stat. 539, and each owned property held in trust by the United States, including 1.83651 Osage headrights for petitioner Harry Red Eagle, of which one headlight is his original headright and the remaining .83651 of a headright was inherited, and 2.34722 headrights for petitioner Mary Red Eagle, of which one headright was her original headright and 1.34722 headrights were inherited. Neither petitioner has ever received a certificate of competency.

2. All of the 1951 income for petitioners consisted of income from trust property as follows:

"Harry Mary Bed Eagle Bed Eagle
Headright _$1,602.68 $2,048.24
Interest_ 7.06 375.77
Capital Gain_ . 25 18.59
Rentals- 905.66 350.20
2, 515. 55 2, 792.80

3.All of the 1951 income of the petitioners from their mineral headrights and from their other trust property was collected and received by the defendant through its duly authorized officers and credited to each petitioner’s trust account in the Osage Indian Agency, Pawhuska, Oklahoma. The moneys in such trust accounts were held by the United States in trust for petitioners and disbursed under the supervision and' control of the Secretary of the Interior and his authorized representatives including the Superintendent of the Osage Indian Agency.

4. For the year 1951 the United States through its duly authorized officers prepared and filed a joint Federal income tax return for petitioners on March 15, 1952, showing all of petitioners’ income to be trust income from petitioners’ headrights in the sum of $3,650.82 and trust income from other sources in the sum of $1,657.53. The United States by its officers paid itself the sum of $729.82 as the Federal income tax for 1951, $334.82 from the trust account of petitioner Harry Bed Eagle and $395 from the trust account of petitioner Mary Ked Eagle. The information concerning the amount of headright income was taken from the books and records of the Osage Indian Agency. A single Government check was written by the Bureau of Indian Affairs for all income taxes on noncertificated income of the Indians and issued to the Internal Bevenue Service.

5. On June 15, 1959, petitioner Harry Bed Eagle filed a claim for refund of $334.82 for taxes for 1951 with the District Director of Internal Bevenue at Oklahoma City, to whom the tax was paid by the Superintendent of the Osage Indian Agency. The claim was denied by registered letter from the District Director of Internal Bevenue, addressed to both petitioners and mailed July 16, 1959. No claim for refund was filed for Mary Bed Eagle.

6. The refund is claimed for that portion of the taxes paid for Harry Bed Eagle attributable to headright income. No issue is raised respecting income from sources other than headrights.

CONCLUSION OF LAW

Upon the foregoing findings of fact,which are made a part of the judgment herein, the court concludes as a matter of law that plaintiff Harry Bed Eagle is entitled to recover and it is therefore adjudged and ordered that he recover of and from the United States the amount of three hundred thirty-four dollars and eighty-two cents ($334.82), with interest as provided by law. It is further concluded that plaintiff Mary Bed Eagle is not entitled to recover, and the petition as to her is dismissed.  