
    CLINTON COAL CO. v. UNITED STATES.
    No. L-107.
    Court of Claims.
    May 14, 1934.
    For former opinion, see 5 F.Supp. 777. Lowndes C. Connally, of Washington, D. C. (Schuyler C. Mowrer, of Indianapolis, Ind., and Maurice Kay and William A. Neacey, both of Washington, D. C., on the brief), for plaintiff.
    Charles B. Rugg, of Boston, Mass. (Charles R. Pollard and D. Louis Bergeron, both of Washington, D. C., on the brief), for the United States.
    Before BOOTH, Chief Justice, and GREEN, LITTLETON, WILLIAMS, and WHALEY, Judges.
   GREEN, Judge.

In its motion for new trial the plaintiff has abandoned its claim that it is entitled to recover the amount credited on the 1917 taxes from the overpayment for 1918, but now argues that the Commissioner incorrectly computed the interest on this credit up to the time when it was applied on the 1917 taxes. The claim now made was not presented in argument and was not considered in the opinion rendered. It is not subject to the limitations upon actions for recovery of refunds, and is not barred.

The defendant contends that this claim is made in the motion for new trial for the first time. If this be true, it is too late, but the majority of the court is of the opinion that the petition is sufficiently broad to cover this matter and that the plaintiff is entitled to judgment for interest under the provisions of section 1019 of the Revenue Act of 1924 (26 U.S.C.A. § 1671 note) upon the credit of $43,927.65 up to February 19, 1924, when the additional assessment was made of the taxes for 1917. The taxes of 1918 were paid in four installments, and the computation to be accurate must take into consideration the dates of these installments. As these dates and the amounts of these payments are not contained in the findings, an amendment thereto will be made setting them out.

A footnote shows the computation of 'interest, and deducting the amount which was allowed by the Commissioner we find $6,220.25 due the plaintiff, for which judgment will be ordered. 
      
       Computation of Interest.
      
        
      
      