
    442 F. 2d 371
    ABRAHAM BARENFELD AND LENA BARENFELD v. THE UNITED STATES CHARLES BARENFELD AND IRMA BARENFELD v. THE UNITED STATES
    No. 234-66
    No. 235-66
    [Decided May 14, 1971]
    
      
      George T. Altman, attorney of record, for the plaintiffs.
    
      Frances M. Foltz, with whom was Assistant Attorney General Johnnie M. Walters, for defendant.
    Before CoweN, Chief Judge, Laramore, Dureee, Davis, ColliNs, SkeltoN, and Nichols, Judges.
    
   Per Curiam :

These cases were referred to Trial Commissioner Mastín G. White with directions to mate findings of fact and recommendation for conclusions of law under the order of reference and Buie 134(h). The commissioner has done so in an opinion and report filed on February 23,1971. Neither party filed a notice of intention to except to the commissioner’s report and opinion and the time for so doing under the Buies of the court has expired. On April 9, 1971, defendant filed a motion for judgment requesting that the court adopt the commissioner’s findings of fact, opinion and recommended conclusion of law as tbe basis for its judgment in these cases.

Since the court agrees with the commissioner’s opinion, findings and recommended conclusion of law, as hereinafter set forth, it hereby grants defendant’s said motion and adopts the same as the basis for its judgment in these cases without oral argument. Therefore, plaintiffs are not entitled to recover on their respective claims for the year 1958 [the only remaining claims after the entry of the partial judgments for plaintiffs for the years 1959 and 1960 (in No. 234-66) and 1959 and 1961 (in No. 235-66) as set forth in the commissioner’s opinion] and the petitions as they pertain thereto are dismissed.

OPINION OP COMMISSIONER

White, Commissioner: The plaintiffs in these cases filed petitions on June 30, 1966, seeking refunds of income taxes. The plaintiffs in case No. 234-66 sought refunds for the calendar years 1958, 1959, and 1960; and the plaintiffs in No. 235-66 sought refunds for the calendar years 1958,1959, and 1961.

When initially filed, these cases primarily involved the question of whether the respective plaintiffs had realized capital gains (as contended by the plaintiffs) or ordinary income (as contended by the Internal Eevenue Service) in connection with sales of their respective interests in a partnership known as the Sam Berger Investment Company. The present cases were companions to Morse v. United States, Ct. Cl. No. 350-63, and Ginsburg v. United States, Ct. Cl. No. 70-65, which involved the question of whether the taxpayers Morse and Ginsburg, who owned partnership interests in the Sam Berger Investment Company similar to those owned by the present plaintiffs (except that the percentages of ownership differed), had realized capital gains or ordinary income in selling such partnership interests. Proceedings in the present cases were held in abeyance, pursuant to the joint request of the plaintiffs and the defendant, to await the outcome of the Morse and Ginsburg cases.

After decisions favorable to the taxpayers Morse and Ginsburg were rendered by this court in Morse v. United States, 178 Ct. Cl. 405, 371 F. 2d 474 (1967), and in Ginsburg v. United States, 184 Ct. Cl. 444, 396 F. 2d 983 (1968), the parties in the present cases filed stipulations for partial judgments — and the court entered partial judgments on March 13,1970 — in favor of the plaintiffs Abraham and Lena Barenfeld for the years 1959 and 1960, and in favor of the plaintiffs Charles and Irma Barenfeld for the years 1959 and 1961.

The claims for 1958 asserted in the present cases could not be disposed of on the basis of this court’s decisions in the Morse and Gmsbwrg cases because the defendant had asserted in each of the present cases an affirmative defense based on the ground that the claim for 1958 was barred by the pertinent statute of limitations. Consequently, it was necessary to receive evidence with respect to such defense, and this was done at a joint trial that was held in late August of 1970.

The defendant bases its affirmative defense in each case upon Sections 6511(a) and 7422(a) of the Internal Bevenue Code of 1954 (26 TJ.S.C. §§ 6511(a), 7132(a)).

Section 6511(a) of the 1954 Code provides in pertinent part as follows:

Claim for credit or refund of an overpayment of any tax * * * in respect of which tax the taxpayer is required to file a return shall be filed by the taxpayer within 3 years from the time the return was filed or 2 years from the time the tax was paid, whichever of such periods expires the later * * *.

Section 7422(a) of the 1954 Code states in part that:

No suit or proceeding shall be maintained in any court for the recovery of any internal revenue tax alleged to have been erroneously or illegally assessed or collected * * * until a claim for refund or credit has been duly filed with the Secretary [of the Treasury] or his delegate, according to the provisions of law in that regard * * *.

The alleged overpayments of 1958 income taxes for which recoveries are sought in the two pending cases were made by the respective plaintiffs in 1962 pursuant to deficiencies assessed by the Internal Revenue Service. In case No. 281-66, the principal amount of the deficiency for 1958 was paid not later than September 17, 1962, and the accrued interest was paid not later than October 22,1962. In case No. 235-66, the deficiency and accrued interest were paid not later than July 17,1962.

The evidence in the record shows that the plaintiffs in the present cases did not, prior to March 12, 1965, file with the Internal Revenue Service anything which purported to be a claim for refund or credit with respect to 1958 taxes. On March 12, 1965, the plaintiffs in each case filed with the Internal Revenue Service a Form 843 (Claim) for the year 1958.

Thus, the plaintiffs Abraham and Lena Barenfeld hi case No. 23Í-66 filed their claim approximately 2 years and 5 months after they made the last payment on the deficiency for 1958; and the plaintiffs Charles and Irma Barenfeld in case No. 235-66 filed their claim approximately 2 years and 8 months after paying the deficiency for 1958. (In both instances, the formal claims were filed approximately 6 years after the taxpayers had filed their returns for 1958.)

The prior filing with the Internal Revenue Service of a timely and informative claim for refund or credit has long been a prerequisite to a suit for the recovery of an alleged overpayment of taxes. An important purpose of this requirement is to advise the Internal Revenue Service of the claims or demands which taxpayers intend to assert, so that the administrative agency can take appropriate steps to insure an orderly administration of the revenue. United States v. Felt & Tarrant Mfg. Co., 283 U.S. 269, 272 (1931).

It is not necessary that a claim for refund or credit be submitted to the Internal Revenue Service in any particular form. If a taxpayer submits to the Internal Revenue Service some sort of written instrument which informs the administrative agency that the taxpayer believes that he has been subjected to an erroneous or illegal tax exaction, and that he desires a refund or credit because of such action, this is sufficient. Cumberland Portland Cement Co. v. United States, 122 Ct. Cl. 580, 591-92, 104 F. Supp. 1010, 1013-14 (1952); Stuart v. United States, 131 Ct. Cl. 174, 179-81, 130 F. Supp. 386, 388-89 (1955).

With respect to the point mentioned in the preceding paragraph, the plaintiffs contend in their brief that, under the circumstances of these cases, “the * * * Forms 870 filed by each of the plaintiffs were informal claims adequate to give notice to defendant’s proper officers within the time allowed for the filing of claims * *

The Forms 870 referred to in the plaintiffs’ brief were filed by the plaintiffs in 'both of these cases on May 25,1962, which was before the deficiencies for 1958 were assessed against and paid by the plaintiffs. Those forms merely constituted waivers, pursuant to Section 6213(d) of the 1954 Code, of restrictions on the assessment and collection of deficiencies for 1958 (and certain other years not now in issue). The Forms 870 did not contain any language which informed the Internal Revenue Service, either expressly or by clear implication, that the present plaintiffs proposed to contest the propriety of, and to seek a refund or credit respecting, any deficiency that might be assessed for 1958. Consequently, the Forms 870 which the present plaintiffs filed in May 1962 cannot be regarded as constituting “claims” for the purposes of Sections 6511 (a) and 7422 (a) of the 1954 Code. This is so despite the circumstance that, as explained in subsequent paragraphs of this opinion, Internal Revenue Agent Ralph A. Prukop (“the revenue agent”), a representative of the Internal Revenue Service on the West Coast, was well aware at the time when the present plaintiffs filed the Forms 870 in May 1962 that the plaintiffs objected to any deficiency for 1958 being assessed against them.

Abraham Barenfeld and Charles Barenfeld were members of a group of 13 persons whose several interests in the Sam Berger Investment Company totaled 20% and who have been referred to in prior litigation as “the 20% group.” Sometime before January 4,1962, members of the 20% group learned that the Internal Revenue Service, which had been examining the income tax returns of Sam Berger, was taking the position that profits derived from sales of partnership interests in the Sam Berger Investment Company were taxable as ordinary income, rather than as capital gains. A majority of the 20% group (9 out of 13, the 9 being residents of the Los Angeles area and including Abraham and Charles Barenfeld) thereupon retained George T. Altman (“Mr. Altman”), a Los Angeles attorney, to represent them in connection with this matter.

Mr. Altman then had a conference on January 4, 1962, with the revenue agent. At this conference, the question of whether members of the 20% group realized capital gains or ordinary income in connection with sales of their respective interests in the Sam Berger Investment Company was treated as an issue that was common to all the members of the 20% group; and the common issue was discussed by Mr. Altman and the revenue agent on the basis that all the members of the 20% group should be treated alike with respect to the matter of taxability. It was the position of the revenue agent that the members of the 20% group had realized ordinary income from such sales, while Mr. Altman took the contrary position that profits from such sales constituted capital gains for the members of the 20% group.

After the conference of January 4,1962, Mr. Altman had other contacts with the revenue agent (and with other representatives of the Internal Bevenue Service). In all such contacts, the matter of the taxability of profits from sales of partnership interests in the Sam Berger Investment Company was discussed on the basis that it was an issue common to all the members of the 20% group. Furthermore, in all of his contacts with the revenue agent and with other representatives of the Internal Bevenue Service, Mr. Altman consistently voiced objection to the IBS position that the profits in question were taxable as ordinaiy income, rather than as capital gains.

The discussions previously mentioned were background for the filing by the present plaintiffs of Forms 870 on May 25, 1962. Seven other members of the 20% group also filed Forms 870 on the same date. They were all clients of Mr. Altman, and they regarded the filing of the Forms 870 as a step toward testing the correctness of the revenue agent’s determination that they had realized ordinary income, rather than capital gains, in connection with sales of their interests in the Sam Berger Investment Company.

It was Mr. Altman’s plan to use the claim of Theodore Morse for the purpose of testing the correctness of the revenue agent’s determination. To that end, Mr. Altman urged Theodore Morse to pay immediately the amounts of the deficiencies assessed against him and to file a claim for refund promptly thereafter.

Deficiencies were assessed against the members of the 20% group on the basis of a report prepared by the revenue agent under the date of June 7, 1962, and issued to each member of the 20% group. Theodore Morse paid his additional taxes on July 7, 1962; he filed a claim for refund with respect to the year 1958 on August 7,1962; and his claim was rejected on January 10, 1968. In December 1963, Mr. AJtman filed a petition on behalf of Theodore Morse in this court (Ct. Cl. No. 350-63). In connection with the institution of the suit on behalf of Theodore Morse, Mr. Altman informed the attorney of record for the Government in that case that he (Mr. Altman) regarded the Morse case as being in the nature of a test case to determine the correctness of the determination by the Internal Eevenue Service that members of the 20% group realized ordinary income, rather than capital gains, in connection with sales of their interests in the Sam Berger Investment Company.

At about the time in December 1963 when Mr. Altman filed the petition in this court on behalf of Theodore Morse, Mr. Altman advised his other clients among the 20% group that they should also prepare claims and file them with the Internal Eevenue Service. Unfortunately for the present plaintiffs, they did not follow Mr. Altman’s advice until March 12,1965.

Perhaps the Internal Eevenue Service, if it had made a careful study of all the circumstances previously outlined in this opinion, could have deduced prior to March 12,1965, that the present plaintiffs desired to obtain refunds of the amounts which, they had paid as deficiencies for the year 1958. However, the Internal Revenue Service is not required to weigh circumstantial evidence in order to determine whether a taxpayer is asking for a tax refund. See American Rad. & Standard San. Corp. v. United States, 162 Ct. Cl. 106, 114, 318 F. 2d 915, 920 (1963). As previously stated in this opinion, an informal claim must be in writing and it must be phrased with sufficient clarity to inform the Internal Revenue Service that the taxpayer desires a tax refund or credit for some specified reason indicating erroneous or illegal collection.

Furthermore, the filing by Theodore Morse with the Internal Revenue Service of a timely claim for refund with respect to 1958 did not relieve the present plaintiffs of the necessity of complying with Section 6511 (a) of the 1954 Code by filing timely claims themselves, even though Theodore Morse was in precisely the same situation as the present plaintiffs with respect to the issue under consideration. Rosengarten v. United States, 149 Ct. Cl. 287, 294, 181 F. Supp. 275, 279 (1960), cert. denied, 364 U.S. 822 (1960).

For the reasons previously stated in this opinion, the plaintiffs are not entitled to recover on their respective claims for the year 1958, which are time-barred, and the petitions should be dismissed as to such claims.

FINDINGS on Fact

1» In a timely return for 1958 filed by the plaintiffs in each of these cases, their share of the sale of a partnership interest was shown as a sale of a capital asset.

2. The partnership interest so sold was that which was referred to as the “20% interest” in the Sam Berger Investment Company in two cases which have been previously litigated before this court: Morse v. United States, 178 Ct. Cl. 405, 371 F. 2d 474 (1967); and Ginsburg v. United States, 184 Ct. Cl. 444, 396 F. 2d 983 (1968). Another case involving the same issue, Bolton v. United States, Ct. Cl. No. 73-65, was consolidated with the Ginsburg case.

3.The 20% interest was owned by the following 13 persons (“the 20% group”) in the respective proportions indicated:

4. The Internal Revenue Service proposed determinations with respect to the sale of the various interests in the Sam Berger Investment Company and with respect to the settlement of a claim against Sam Berger, to the effect that such sale and settlement resulted in ordinary income, rather than capital gains. These adjustments were proposed with respect to all of the partners of the Sam Berger Investment Company, including those identified as the 20% group.

5. The Internal Revenue Service treated the matter involving the 20% group as presenting a common question as to all members of the group.

6. (a) A conference was held on January 4,1962, between Internal Revenue Agent Ralph A. Prukop (“the Revenue Agent”) and George T. Altman (“Mr. Altman”), a Los Angeles attorney representing all the members of the 20% group (see finding 3) except Joseph Benaron, David Gens-burg, Myer Ginsburg, and Samuel Reisman.

(b) All the persons represented by Mr. Altman, as indicated in paragraph (a) of this finding, were residents of the Los Angeles area.

(c) At the conference of January 4, 1962, and in subsequent contacts between Mr. Altman and the Revenue Agent (or other representatives of the Internal Revenue Service), there was discussion of a common issue or matter which pertained to all members of the 20% group. This common matter was usually referred to as “the Country Club Joint Venture matter,” and it involved the question of whether the members of the 20% group realized capital gains or ordinary income in connection with sales by them of their respective interests in the partnership known as the Sam Berger Investment Company. This common question was discussed by Mr. Altman and the Revenue Agent (or other IRS representatives) on the basis that all members of the 20% group should be treated alike with respect to the determination of whether they realized capital gains or ordinary income from sales of the partnership interests in question. It was the position of the Revenue Agent (and of other IRS representatives) that the members of the 20% group had realized ordinary income from such sales. Mr. Altman took a contrary position.

(d) At the January 4,1962, conference, and in subsequent contacts with the Revenue Agent (or other IRS representatives), Mr. Altman objected to the Revenue Agent’s determination that the members of the 20% group had realized ordinary income, rather than capital gains, in connection with sales of their respective interests in the Sam Berger Investment Company.

(e) In addition to the common issue described in paragraph (c) of this finding, there were other questions discussed at the conference on January 4, 1962, which involved various members of the 20% group but which were not common to all members of the group.

7* (a) By means of a letter dated May 25,1962, Mr. Altman transmitted Forms 870 (Waiver and Consent to Immediate Assessment) to the Revenue Agent on behalf of the following members of the 20% group:

Herbert Glaser

Jack Barenfeld

Samuel Barenfeld

Charles Barenfeld

Samuel Glaser

Allen Balton

Theodore Morse

Max Ginsburg

Abraham Barenfeld

(b) Some of the persons named in paragraph (a) of this finding had filed joint returns with their wives in 1958, and the various documents referred to in the findings of fact may have been in the names of husband and wife. For the sake of convenience, only the name of the husband is used in the findings of fact.

(c) All of the persons named in paragraph (a) of this finding had, by filing Forms 872, extended the statute of limitations on assessment to June 30,1962.

(d) The respective taxpayers mentioned in paragraph (a) of this finding regarded the Forms 870 as a step toward testing the correctness of the Eevenue Agent’s determination that they had realized ordinary income, rather than capital gains, in connection with sales of their respective interests in the Sam Berger Investment Company.

(e) Because of decisions previously rendered by the Tax Court, Mr. Altman was opposed to submitting to that court the issue of whether the taxpayers mentioned in paragraph

(a)of this finding had realized ordinary income or capital gains in connection with sales of their respective interests in the Sam Berger Investment Company. It was Mr. Altman’s plan to proceed instead by means of suit for refund and to use the claim of Theodore Morse for the purpose of testing the correctness of the Eevenue Agent’s determination. To that end, Mr. Altman urged Theodore Morse to pay immediately the amounts determined on his Form 870 and to file a claim for refund promptly thereafter. (See finding 13.)

8. (a) The Form 870 waivers referred to in finding 7 constituted waivers of restrictions on assessment and collection of deficiencies pursuant to Section 6213 (d) of the Internal Eevenue Code of 1954.

(b) The plaintiffs Abraham and Lena Barenfeld executed a single Form 870-A in May 1962 (see finding 7) for the years 1956,1957, and 1958 (1958 being the year now in issue).

(c)' The plaintiffs Charles and Irma Barenfeld executed a Form 870-A in May 1962 (see finding 7) for the year 1958 only.

9. On June 7, 1962, a report prepared by the Eevenue Agent was issued to each of the persons named in finding 7(a). The reports made the same determination with respect to the sale of the 20% partnership interest and the settlement for each of the persons listed in finding 7(a), except as to the amounts, which depended on the respective share and tax bracket of each taxpayer, and other adjustments which were made in the individual cases of some of the members of the 20% group. The said settlement is the settlement referred to in finding 4.

10. (a) By means of a letter dated June 14,19,62, Mr. Altman transmitted powers of attorney to the Eevenue Agent for the following individuals and their wives:

Samuel Barenfeld Samuel Glaser
Abraham Barenfeld Charles Barenfeld
Jack Barenfeld David Gensburg

(b) The letter of June 14,1962, stated that similar powers of attorney had been filed on December 15, 1960, for the following taxpayers and their wives:

Herbert Glaser Max Ginsburg
Theodore Morse Allen Balton

11. The deficiencies against the plaintiffs Abraham and Lena Barenfeld were assessed and paid on or before June 30, 1962, and September 17, 1962, respectively. Accrued interest was paid on or before October 22,1962.

12. The deficiency against the plaintiffs Charles and Irma Barenfeld was assessed and paid on or before June 30,1962, and July 17,1962, respectively.

13. (a) Theodore Morse paid his additional taxes on July 9,1962, and filed a claim for refund on August 7,1962.

(b) The Morse claim for refund for 1958 was rejected by a Eevenue Agent’s report dated January 10,1963.

(c) On December 4, 1963, Mr. Altman sent a certified letter to the Court of Claims, enclosing a petition for Theodore Morse, which was docketed as case No. 350-63. The letter of December 4, 1963, stated in part as follows:

This may eventuate into a class action of the persons making up the 20% referred to in Paragraph 19 of the Petition.

(d) Mr. Altman informed the Government’s attorney of record in the Morse case that he (Mr. Altman) regarded that case as being in the nature of a test case to determine the correctness of the determination by the Internal Revenue Service that members of the 20% group realized ordinary income, rather than capital gains, in connection with sales of their respective interests in the Sam Berger Investment Company.

(e) A decision favorable to the taxpayer was rendered by this court in the Morse case (178 Ct. Cl. 405, 371 F. 2d 474 (1967)).

14. (a) On December 4, 1963, Mr. Altman also sent a letter to Max Ginsburg in which he stated—

I shall appreciate it very much if you will ask all of the parties involved to have their accountants prepare claims for refund involving the same items and issues [referring to the Morse petition] for the years 1955 through 1961.

(b) Subsequently, Mr. Altman himself called the accountants to remind them of it. Thereafter, he assumed that the accountants had taken care of the matter.

15. (a) The plaintiffs Abraham and Lena Barenfeld filed a Form 843 (Claim) for the year 1958 on March 12, 1965. They did not file any claim for the year 1956 or for the year 1957.

(b) The claim referred to in paragraph (a) of this finding was for an amount in excess of the deficiency which had been assessed against and paid by the plaintiffs Abraham and Lena Barenfeld for the year 1958, partially because they claimed a retirement income credit which they had not previously claimed on their return.

(c) The Revenue Agent’s report dated August 16, 1965, disallowed the claim of the plaintiffs Abraham and Lena Barenfeld for the year 1958 — together with a claim which had been filed for the year 1959 but which is not now in issue — on the grounds that these plaintiffs had presented no new information in support of their claims beyond what had been considered prior to the determination of the deficiencies and, also, that the claim for 1958 was untimely under Section 6511 of tibe Internal Revenue Code of 1954.

16. (a) The plaintiffs Charles and Irma Barenfeid filed a Form 843 (Claim) for the year 1958 on March 12, 1965.

(b) The claim referred to in paragraph (a) of this finding was in the amount of $16,238.32, whereas the deficiency assessed against the plaintiffs Charles and Irma Barenfeid for 1958 was $13,628.70. The record before the court does not clearly disclose the reason for the difference between the amount of the deficiency and the amount of the claim.

(c) A report by the Revenue Agent dated September 28, 1965, disallowed the claim of the plaintiffs Charles and Irma Barenfeid for the year 1958 — together with claims which had been filed for 1959 and 1961 but which are not now in issue— on the grounds that these plaintiffs had presented no new information in support of their claims beyond what had been considered prior to determination of the deficiencies and, also, that the claim for 1958 was untimely under Section 6511 of the Internal Revenue Code of 1954.

17. On June 30, 19.66, the plaintiffs Abraham and Lena Barenfeid, and the plaintiffs Charles and Irma Barenfeid, filed their respective petitions in this court, demanding in each case a refund of the 1958 deficiency previously paid (as well as refunds for other years that are not now in issue).

18. A majority of the members of the 20% group (see finding 3) instituted suits to recover deficiencies paid, or for redetermination of deficiencies assessed, for 1958. Following is a list of such persons, showing the respective docket numbers of the suits brought by them :

Herbert Glaser, Ct. Cl. No. 237-66
Charles Barenfeid, Ct. Cl. No. 235-66
Joseph Benaron, Tax Ct. No. 432-64
Samuel Barenfeid, Ct. Cl. No. 236-66
Allen Balton, Ct. Cl. No. 73-65
Theodore Morse, Ct. Cl. No. 350-63
Max Ginsburg, Ct. Cl. No. 70-65
Abraham Barenfeid, Ct. Cl. No. 234-66

19. Mr. Altman represented all of the persons listed in finding 18 whose suits were brought in the Court of Claims. He was attorney of record also for the taxpayers involved in Estate of Freeland v. Comnmissioner (Lowthian v. Commissioner), P-H Memo T.C., par. 66,283 (Dec. 30, 1966), aff’d, 393 F. 2d 573 (9th Cir. 1968), which involved other partners in the Sam Berger Investment Company who were not members of the 20% group.

20. Mr. Altman discontinued representing Jack Baren-feld and Samuel Glaser at some point after he filed Forms 870 on their behalf for 1958 (see finding 7).

21. (a) Mr. Altman did not represent Joseph Benaron in the Tax Court litigation (see finding 18).

(b) The taxpayers in the Benaron suit were contesting a deficiency determination for 1958 in the amount of $24,288.25, to the extent of $23,539.44. The deficiency determination for 1958 rested upon a proposed increase in taxable income in the amount of $57,395.92, of which $16,874.13 represented income from the sale of the 20% partnership interest and settlement of the claim against Sam Berger.

(c) The parties to the Benaron suit in the Tax Court filed a joint motion for continuance on September 7,1966, in which they informed the court of a “similar case involving another member of said investment syndicate” in the Court of Claims, and stated that the outcome of the Court of Claims suit would likely enhance settlement probabilities in the Benaron case, although it “may not be legally dispositive of the similar issues involved herein.” A status report dated January 20, 1967, informed the Tax Court of the then-recent, decision by the Court of Claims in the Morse case (see finding 13).

(d) On December 5, 1967, a stipulation of settlement was filed in the Benaron case. With respect to the 1958 deficiency, which was in issue, it stated:

It is further stipulated that there is a deficiency in the income tax due from petitioners for the taxable year 1958 in the amount of $17,323.26.

The terms of the settlement for 1958 were not set out further. Decision was entered upon the stipulated settlement on December 7,1967.

CONCLUSION OK LAW

Upon the foregoing findings of fact and opinion, which are adopted by the court and made a part of the judgment herein, the court concludes as a matter of law that the plaintiffs are not entitled to recover on their respective claims for the year 1958, and the petitions in cases Nos. 284-66 and 285-66 are dismissed as to such claims. 
      
       The plaintiffs had previously, by filing Forms 872, extended the period of limitations on assessments to June 80, 1962.
     