
    GUANTANAMO SUGAR CO. v. UNITED STATES.
    No. 43851.
    Court of Claims.
    Nov. 3, 1941.
    For former opinion, see 38 F.Supp. 252.
    
      David A. Buckley, Jr., of Washington, D. C. (Harvey L. Rabbit, of Washington, D. C., of counsel), for plaintiff.
    S. E. Blackham, of Washington, D. C., and Samuel O. Clark, Jr., Asst. Atty. Gen. (Robert N, Anderson and Fred K. Dyar, both of Washington, D. C., on the brief), for defendant.
    Before WHALEY, Chief Justice and LITTLETON, WHITAKER, JONES, and MADDEN, Judges.
   MADDEN, Judge.

Plaintiff in its motion for a new trial and amended findings urges that the court erred in failing to give judgment for plaintiff for that part at least of the overpayment for 1918 which was paid by credit December 31, 1932, $2,147.95.

In our former opinion it was assumed that the item of $2,147.95 listed as allowable in the certificate of overassessment for 1918 was the assessment of that amount paid by credit December 31, 1932, and that it had been refunded. The fact was, however, that this item was a duplicate and erroneous assessment for $2,147.-95 made in November 1934, which had never been paid and hence was allowable for abatement. This transaction did not, therefore, affect plaintiff’s right to recover the item of the same amount paid in 1932 by credit, which was included in the amount of the overassessment claimed barred by the statute of limitations. It should not have been so included. That payment in 1932 was made after the filing of the original and amended petitions to the Board of Tax Appeals. The defendant concedes that the limitation provision of section 322(d) of the Revenue Act of 1932, 26 U.S.C.A. Int.Rev.Acts, page 572, re-, quiring as a condition of recovery where an overpayment is found by the Board of Tax Appeals that the tax be paid within two years of the filing of the petition is not applicable to a payment made after the filing of the petition. Plaintiff is therefore entitled to recover $2,147.95 of the amount overpaid on taxes for 1918.

The other claims advanced in the motion for a new trial are rejected for the reasons stated in the original opinion.

Judgment will be entered for plaintiff for $2,147.95 with interest as provided by law. It is so ordered.  