
    SAFE DEPOSIT & TRUST CO. OF BALTIMORE, M. ERNEST JENKINS AND T. COURTENAY JENKINS, ADMINISTRATORS OF THE ESTATE OF JOSEPH W. JENKINS, JR., DECEASED, v. THE UNITED STATES
    [No. M-395.
    Decided February 4, 1935]
    
      Mr. Arthur W. Machen, Jr., for the plaintiffs.
    
      Mr. John A. Rees, with whom was Mr. Assistant Attorney General Frank J. Wideman, for the defendant.
   Littleton, Judge,

delivered the opinion of the court:

The overpayment which the plaintiffs seek to recover in this case constitutes a part of the total of the estate tax determined by the Commissioner of Internal Kevenue and paid on the net estate of the decedent. An estate tax return was duly filed and the tax assessed thereon was paid. The Commissioner subsequently audited the return and determined, assessed, and demanded deficiencies of $115,302.77 and -$2,700.22, which were paid on August 19, 1925, and constituted the final payment on account of the total tax deter.mined and demanded from the estate. Thereafter, within three years after the total tax had been determined and paid, the estate filed claims for refund which were allowed in part and rejected in part and later reopened and reconsidered. Thereafter the Commissioner determined that there had been a further overpayment of $191,225.46 in respect of the tax of the estate but refused to refund the amount of $134,212.25 thereof with interest, on the ground that this portion of the total estate tax collected had been paid more than four years prior to the filing of the claim for refund.

The only issue presented in this case is one of law and is exactly the same as the question considered and decided by this court November 5, 1934, in Jessie Norwell Hills, Executrix, v. United States, 8 F. Supp. 849, ante, p. 41 and in Haebler v. United States, 8 F. Supp. 855, ante, p. 256. For the reasons stated in these opinions we hold that the overpayment in question is not barred by the statute of limitation and that plaintiffs are entitled to recover. Judgment will be entered accordingly. It is so ordered.

Whalex, Judge; Williams, Judge; Green, Judge; and. Booth, Chief Justice, concur.

ON DEPENDANT’S MOTION POR A NEW TRIAL

Littleton, Judge,

delivered the opinion of the court::

In a motion for a new trial the defendant requests amendment of the findings and assigns as errors of law the same propositions that have several times heretofore been considered by this court and other courts to which the questions have been presented. Hills v. United States, 73 C. Cls. 128, 50 Fed. (2d) 302-55 Fed. (2d) 1001; ante, p. 41, 8 F. Supp. 849; Union Trust Co. of Rochester v. United States, 5 F. Supp. 259, affirmed 70 Fed. (2d) 629; Clarke v. United States, 5 F. Supp. 292, affirmed 69 Fed. (2d) 748, certiorari denied October 8, 1934; Magoon, et al. United States, C. C. H., para. 9294, vol. 3, 1933; Prentice-Hall, para. 1274, vol. 1, 1933; affirmed C. C. A., 9th Circ., May 20, 1935; Prentice-Hall, para. 1422, vol. 1, 1935; San Joaquin Light & Power Corp. v. McLaughlin, 65 Fed. (2d) 677.

The only point made by the defendant which this court did not discuss in the opinions heretofore rendered on the-subject is a point made in argument before this court on a supposed case where a taxpayer might, after the decision of' the question in the Hills case, discover that it had overpaid, its taxes and voluntarily make an amended return and pay a small additional tax by reason of some inadvertent omission in the original return and thereafter file a claim for refund for a large overpayment previously made. No such case is pending in court. It will be soon enough to decide the-question if and when such a case arises.

The facts heretofore found by the court in this case set forth all the facts pertinent to the question presented. The motion for a new trial and amendment of findings is not well taken and is, therefore, overruled.

Whalex, Judge; Williams, Judge; Green, Judge; and-' Booth, Chief Justice, concur.  