
    HILBERT L. BAIR AND RUTH V. BAIR v. THE UNITED STATES
    [No. 470-59.
    Decided April 4, 1962.
    Plaintiffs’ motion to vacate order denied July 18, 1962]
    
      
      Osmond K. Fraenhel for plaintiff.
    
      8. Laurence Shaiman, with, whom was Assistant Attorney General Louis F. Oberdorfer, for defendant. Lyle M. Turner, Edward 8. Smith, Philip B. Miller and Eugene Emerson were on the briefs.
   Pek Curiam:

This is an action to recover the sum of $11,475.19, with interest from August 22, 1952, for income taxes paid for the year 1946.

Plaintiffs seek recovery here on the grounds that the Commissioner of Internal Revenue was erroneous in placing a valuation of $90,000 on two parcels of real estate received by the partnership of Goldsmith & Bair (in which plaintiff Hilbert L. Bair was a 50% partner), which real estate the partnership had received upon the dissolution of the Plilde-garde Realty Corporation in 1945. Plaintiffs allege that the correct value of this real estate should be $124,000 and that this value should be used in computing their income taxes for the year in question.

In previous litigation by these plaintiffs involving this identical taxable year before the Tax Court the value of tbe assets received upon tbe dissolution of the Hildegarde corporation was found to be $98,454.80. In this valuation which was stipulated by the parties and accepted by the Tax Court was a valuation of $90,000 for the real estate in question. Bair v. Commissioner, 16 T.C. 90, 96. This decision was affirmed on appeal, 199 F. 2d 589 (C.A. 2d).

Thus, we have a decision on this question by a court of competent jurisdiction which decision having been affirmed on appeal is final. Plaintiffs are therefore collaterally estopped from again putting this question in issue.

On December 4, 1952, plaintiffs filed an amended return for the year 1945 reducing the claimed loss by using the values of the properties they here contend are the true ones. The amended return shows an excess of tax of $3,625.73, which plaintiffs allege was paid and a claim for refund of this payment was apparently filed in July, 1953. It is asserted that the government has never acted on this claim. This decision is without prejudice to the plaintiffs’ rights to recover any voluntary overpayment which may have been made for the taxable year 1945.

Defendant’s motion for summary judgment is granted and plaintiffs’ petition will be dismissed.

It is so ordered.  