
    LUCY C. ARMSTRONG MOLTZ, EXECUTRIX, FRANK D. M. STRACHAN AND ROBERT W. GROVES, EXECUTORS OF THE WILL OF GEORGE F. ARMSTRONG, DECEASED, v. THE UNITED STATES 
    
    [No. M-317.
    Decided May 31, 1932]
    
      Mr. John A. Rees, with whom was Mr. Assistant Attorney General Charles B. Rugg, for the demurrer.
    
      Mr. Francis R. Lash, opposed. Mr. Raymond A. Lash was on the briefs.
    
      
      Plaintiff’s motion for new trial was overruled Dec. -5, 1932, with opinion by Littleton, J.3 to be hereafter reported.
    
   Littleton, Judge,

delivered the opinion of the court:

This suit is for the recovery of $6,598.80, interest paid on April 21, 1925, on a portion of an additional tax for 1916 assessed April 16, 1920, and paid May 1, 1923, upon the rejection of a claim for abatement.

The decedent prepared and duly filed with the collector for the district of Georgia, on February 28,1911, his income-tax return for the calendar year 1916 showing a total tax liability of $6,241.25 which was duly assessed by the commissioner April 17, 1917, and paid June 14, 1917. Thereafter the commissioner discovered that the return so filed was erroneous and on April 16, 1920, assessed an additional tax of $113,302.54 for 1916.

May 6, 1920, the decedent filed with the collector a claim for the abatement of $36,660 of the additional assessment and the collection of that portion thereof was thereupon stayed. Thereafter, on July 7, 1920, the decedent paid the balance of the additional assessment of $76,642.54 under protest.

The commissioner examined, considered, and audited the decedent’s claim for abatement and on April 6, 1923, notified the decedent by letter of that date that the claim was rejected. Tire decedent received notice and demand from the collector on April 18, 1923, for the payment of the additional tax of $36,660 covered by the abatement claim which had been rejected, plus $12,464.40 as interest thereon at the rate of one per centum per month for a period of thirty-four months. May 1, 1923, the decedent paid under protest the tax of $36,660 demanded by the collector and on the following day, May 2, 1923, filed with the collector a claim asking the abatement of $12,464.40, interest computed and demanded by the collector.

The amount of interest so computed by the collector and included in his notice and demand was erroneotis and was thereafter correctly recomputed by him in the amount of $6,598.80. On August 22, 1923, the last-mentioned amount of interest was assessed by the commissioner. Thereafter, in March, 1925, he rejected the claim for abatement of the interest in its entirety. The commissioner did not mail to the xolaintiffs a notice of his rejection of the abatement claim. Thereafter the collector notified the executors of the estate of the decedent that the interest of $6,598.80 must be paid and on April 21, 1925, they paid the same under protest.

The commissioner did not at any time subsequent tó June 1, 1924, mail to the decedent or to the executors of his estate a notice under sections 274 (a) or 280 of the revenue act of 1924, that he had made a determination of a deficiency in tax or a determination with resj)ect to interest for the taxable year 1916.

April 19, 1929, the plaintiffs, acting through a duly appointed and designated attorney in fact, filed with the commissioner a claim for refund on Form 843 for and on behalf of the estate of the decedent asking for the refund of the additional tax theretofore paid and, likewise, asking for the refund of the interest paid of $6,598.80. The basis of the claim was “ that the additional tax and/or interest for the taxable year 1916 was assessed and/or collected at a time when the commissioner was without a legal right so.to do; or at a time when the assessment and/or collection was barred by the statute of limitations applicable thereto.”

The commissioner considered the claim for refund and by letter of July 31, 1929, to the estate of the decedent, advised the estate and the executors thereof that “ Your claim for refund will therefore be rejected in full. The rejection of the claim will officially appear on the next schedule to be approved by the commissioner.”

On August 21, 1929, the commissioner, by letter of that date, advised the attorney in fact for the estate of the decedent that the “ rejection of the claim was scheduled on August 9, 1929.”

Until recently it was not the regular practice of the Commissioner of Internal Revenue to prepare and sign a schedule of rejection of claims in every case.

George F. Armstrong died February 24, 1924, and by his last will and testament nominated and appointed Lucy C. Armstrong Moltz, executrix, Frank D. M. Strachan and Robert W. Groves, executors, of his estate. They qualified and were granted letters testamentary c. t. a. by the court of ordinary, at Savannah, Georgia.

The defendant demurs to the petition on the grounds, first, that the petition was filed more than five years after the payment of the tax and more than two years after rejection of the refund claim, which rejection, it is contended, occurred on July 31, 1929; and, secondly, upon the facts set forth in the petition the plaintiffs are not entitled to recover the interest sued for.

The questions presented in this case have been considered and decided this date by this court in Savannah Bank & Trust Co. et al. v. United States, M-316 [ante, p. 245]. For the reasons stated in that case we hold that the plaintiffs herein are not entitled to recover.

The demurrer is sustained and the petition is therefore dismissed. It‘is so ordered.

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