
    ARTHUR CURTISS JAMES AND GEORGE NOTMAN, AS EXECUTORS OF ELLEN S. JAMES, DECEASED, v. THE UNITED STATES
    
    [No. J-601.
    Decided February 17, 1930]
    
      Mr. McGlwre Kelley, with whom was Mr. Assistant Attorney General Herman J. Galloway, for the demurrer.
    
      Mr. Robert E. Goulson, opposed. Messrs. Oscar W. Underwood, jr., and H. G. Kilpatrick were on the brief.
    
      
       Certiorari applied for.
    
   Littleton, Judge,

delivered the opinion of the court:

Plaintiff on June 12, 1924, within the time allowed by law, filed a claim for refund of $248,063.63, or such greater amount as might be legally refundable, income tax for 1911.

September 1, 1926, the Commissioner of Internal Revenue rejected the claim in full, and in the same communication, notifying plaintiffs of that fact, also notified them of his determination of a deficiency in respect of the tax of the estate of Ellen S. James for 1911 of $61,813.09.

October 30, 1926, plaintiffs, as executors, instituted a proceeding before the Board of Tax Appeals by the filing of a petition therein for redetermination of the deficiency so determined by the commissioner, claiming that there was no deficiency and, further, that the estate had made an overpayment in excess of $248,063.63. Said proceeding was docketed by the board as No. 20943, and up to the date of the submission of this case for decision upon defendant’s demurrer, said proceeding had not been heard or decided by the board. Defendant demurred to the petition upon the ground that the court is without jurisdiction to entertain the suit. Plaintiffs instituted this suit by the filing of a petition on August 31, 1928.

For the reasons set forth by the court in Ohio Steel Foundry Co. v. United States, No. F-143 [ante, p. 158], and Arthur Curtiss James v. United States, No. J-260 [ante, p. 215], decided this date, this court is without jurisdiction of this case. The defendant’s demurrer is therefore sustained and the petition is dismissed. It is so ordered.

Williams, Judge; GeeeN, Judge; Graham, Judge; and Booth, Chief Justice, concur.  