
    FIDELITY TITLE AND TRUST COMPANY, PITTSBURGH, PENNSYLVANIA, v. THE UNITED STATES.
    [55 C. Cls. 535; 259 U. S. —.]
    Judgment was rendered in favor of the defendant in the court below. On plaintiff’s appeal the judgment was affirmed, and the Supreme Court decided:
    The action was not barred by the two-year statute of limitations for reasons stated in Fidelity é Deposit Go. of Md. v. United States, 259 TJ. S. —.
    Where a company is carrying on five different classes of business, one of which is banking, and a tax has been collected on its capital and undivided profits under sec. 2 of the act of June 13, 1918, 30 Stat. 448, to entitle the company to a refund of the tax, or a part thereof, the burden of proof is on 'it to show that no part of the capital and undivided profits has been used In banking, or if any part has been used in banking, what par( has been so used.
    The language employed in sec. 2 of the act of June 13, 1918, supra,' • that “ in estimating capital, surplus shall be included ” and that the “annual tax shall in all cases be computed on the basis of the capital and surplus for the preceding fiscal year,” was intended to include undivided profits and to make them subject to the tax.
   Mr. Justice Beakdeis

delivered the opinion of the Supreme Court May 29, 1922.  