
    JESSIE NORWELL HILLS, AS EXECUTRIX OF THE LAST WILL AND TESTAMENT OF ALFRED K. HILLS, DECEASED, v. THE UNITED STATES
    [No. L-153.
    Decided June 1, 1931.
    Motion for new trial overruled February 8, 1932]
    
      Mr. J. A. Rees, with whom was Mr. Assistant Attorney General Charles B. Rugg, for the demurrer.
    
      Mr. Merritt E. Haviland, opposed.
   The allegations are stated in substance in the opinion.

Gebek, Judge,

delivered the opinion of the court:

The petition alleges in substance that the plaintiff is the executrix of the estate of Alfred K. Hills, and as such executrix filed an estate-tax return June 6, 1921, which showed that a tax of $18,108.42 was due, of which $380 was abated later, and the balance of $11,148.42 was paid July 26, 1921. It further shows that on April 24, 1925, the commissioner notified plaintiff that he had determined the correct tax liability to be $19,476.02 and that there was a deficiency in payment of $1,727.60. A jeopardy assessment of this deficiency was made April 27, 1925, and on May 1, 1925, was paid by the plaintiff by her check “ as an installment on account of the entire estate tax.” That about October 2, 1926, plaintiff filed a claim for refund of $4,371.33 based upon payment of administration expenses incurred after filing the estate return, and on June 29, 1927, the commissioner advised plaintiff that after audit it was determined that the tax upon the transfer was $16,057.64 and “ since the claim for refund was not filed within four years next succeeding the date the sum of $17,748.42 was paid, only the amount shown to have been paid on May 16, 1925, or $1,727.60 is subject to refund.”

With reference to claims for refund it is alleged that on March 1, 1928, plaintiff filed a claim for refund of $4,743.25 based upon payment of certain administration expenses incurred since the previous claim was filed and certain other administration expenses not reported to the commissioner. On June 28, 1928, plaintiff received a certificate of overas-sessment of $4,080.81 dated May 25, 1928, in which was set out the computation of the overassessment and the same reasons were stated why only $1,727.60 could be refunded, and further stating that the balance of the overassessment in the sum of $2,353.21 was barred.

That on April 30, 1929, plaintiff filed a third claim for refund of the unpaid portion of the overassessment, stating reasons why it was claimed that the same was not barred, and on July 13, 1929, the commissioner advised the plaintiff that said claim was considered as an application to reconsider prior claims and rejected.

Upon these facts the plaintiff asks judgment for $2,353.21, being the unpaid portion of the overassessment and the amount of the refund asked in the third claim.

The defendant demurs to the petition on the ground that it does not set out a cause of action. More specifically the defendant contends that none of the three claims were filed in time by plaintiff and that action on all of them is barred by the statute of -limitations.

The issues raised by defendant are controlled by two sections of the Revised Statutes. Section 3226 provides with' reference to the filing of claims and the time of beginning suit as follows:

“No such suit or proceeding shall be begun before the expiration of six months from the date of filing such claim unless the commissioner renders a decision thereon within that time, nor after the expiration of five years from the date of the payment of such tax, penalty, or sum, unless such suit or proceeding is begun within two years after the disallowance of the part of such claim to which such suit or proceeding relates.”

Section 3228 also provides with reference to the time of presenting claims for refund to the commissioner, as follows:

Sec. 3228. (a) All claims for the refunding or crediting of any internal-revenue tax alleged to have been erroneously or illegally assessed or collected, or of any penalty alleged to have been collected without authority, or of any sum alleged to have been excessive or in any manner wrongfully collected must, * * * be presented to the Commissioner of Internal Revenue within four years next after the payment of such tax, penalty, or sum.”

If the time when the final payment was made on the tax fixes the date when the statute of limitations commenced to run under section 3228, as plaintiff contends, then all three of the claims of plaintiff were filed within the four-year period fixed by this section. But if, on the other hand, this date applies only to the amount then paid, the recovery of any prior payments is barred not only by section 3228 but by section 3226 as well.

For reasons which follow we hold that if plaintiff is entitled to recover at all, her recovery must be based on the second claim filed March 1, 1928.

The disallowance of the first claim was more than two years before the suit was begun, and consequently this claim is of no avail to the plaintiff regardless of whether it was filed before the expiration of five years from the date of the payment of the “ tax, penalty, or sum,” as provided by the statute. What plaintiff refers to as her third claim is merely a repetition of the second claim and for the purposes of the case we think adds nothing thereto.

Defendant contends that there was no action by the commissioner on the second claim, but the certificate of oyer-assessment, which was issued after the second claim had been filed, showed very plainly and directly that the claim had been allowed in part for the same sum as before and disallowed to an extent corresponding to the amount for which plaintiff now asks judgment. The defendant contends that in any event the statute of limitations commenced to run from the date of the disallowance of the first claim, citing Altman & Co. v. United States, 69 C. Cls. 721. If the second claim was the same in all respects as the first claim, this might be conceded, but we think that a comparison of the exhibits attached to the plaintiff’s petition, which set out these claims in full, shows that the specific grounds are different, and that in such a case, a new claim may be filed and the two-year limitation will not begin to run until it has been disallowed. In the instant case the disallowance was within the two-year period. The statute, however, also provides that “ no such suit or proceeding shall be begun * * * after the expiration of five years from the date of the payment of such tax, penalty, or sum,” and the question arises as to what that “ date ” is in the case at bar. This question involves the construction of the language above quoted. The plaintiff contends that the words “ payment of such tax, * * * or sum ” refer to the payment of the whole tax, and that as the deficiency assessed was not paid until May 16, 1925, the whole of the tax was not paid until that date. The suit, having been begun April 29, 1930, under this construction was within the five-year limitation. The contention of the defendant is, in substance, that only that “ sum ” or portion of the tax which was paid within five years from the time suit was begun can be recovered under a proper construction of the statute, and that as the amount which the commissioner refused to pay is part of the $17,748.42 paid on July 26, 1921, it is therefore barred. This question can properly be discussed in connection with defendant’s contention that none of the claims were filed in time, for, although this depends on section 3228, the language used with reference to the date of payment is practically the same and, we think, susceptible of the same construction. .

It will be observed that in both sections 3226 and 3228 it is the date of the “ payment of such tax, penalty, or sum ” which fixes the time from which the limitation must run. If these words refer only to the time when all of the tax which has been found to be due is paid, then all of plaintiff’s claims were filed within the period fixed by law, and the suit is not barred by the statute of limitations. On the other hand, if the words “ payment of such tax, penalty, or sum ” refer to a payment of a part or portion of the tax, then the period of limitation dates from the time of the actual payment of the particular sum sought to be recovered, and plaintiff’s claims were not filed in' time to enable her to recover any portion of the tax not paid within the period of limitations.

Each of the sections of the statute refers to the “ payment of such tax, penaltjq or sum.” It will be observed there is a division into three separate matters. With one of these — the penalty — we are not now concerned. The question therefore is narrowed so as to require the determination of whether the expressions “ such tax * * * or sum ” both refer to the whole tax, or whether one of them may refer to a part of the tax where such parts are collected under a different section or levy. The word “ tax,” or the words “ the tax,” as used in the revenue acts, generally refer to the whole of the tax, but in some instances do not, and the word “ sum ” evidently refers to a particular amount, which, however, may not be, strictly speaking, the tax itself, but only what is added thereto, or collected with the tax under some provision of the law, and a difficult and doubtful question arises in connection with the proper construction of these words. In order to determine it, we shall consider in what form the sections in which they are included were originally enacted, and in connection with other provisions of the revenue law endeavor to determine what construction Congress intended to have put thereon.

Section 3228 was enacted June 6, 1872, substantially as it now stands, except that the period in which suit must be brought was limited to two years.

Section 3226 was originally contained in two sections— 3226 and 3227 of tbe Revised Statutes, 3226 having been enacted July 13, 1866, and 3227 on June 6, 1872. Section 3226 provided that the suit should not be brought to recover a tax until appeal had been made to the Commissioner of Internal Revenue, and section 3227 provided that no such suit should be maintained unless brought within two years after the cause of action accrued.

Section 3226 was amended by. the revenue act of 1921, and the original sections 3226 and 3227 were combined in one section and the limitation period was extended.

Apparently the purpose of making reference in sections 3228 and 3226 to the three items of the “tax, penalty, or sum ” ivas to make it clearly understood that before suit could be brought claims had to be filed for the refund of any penalty or sum sought to be recovered in the same manner as required for the refund of the tax. The amendment of section 3228 by the revenue act of 1921 was made to apply retroactively to claims for refund under the revenue acts of 1916, 1917, and 1918. The word “ sum ” appears to have been used in order to leave no doubt as to the inclusion of certain items which, while in one sense made part of the tax, were imposed by Congress in cases where the taxpayer had failed to observe the statute. These items in many instances were not designated as a part of the tax, or as a penalty. They were simply additional amounts required to be collected. For example, in some instances the additional amount to be collected was specified as interest, and in the income and profits tax statutes from 1916 on, the amounts that were required to be added to the tax under certain circumstances were merely specified as a certain per centum of the tax, or of the amount of tax due; in other cases the per centum was specified as “ the sum ”; and, in still other cases, it was directed that a specific sum “ be added as part of the tax.” Many other similar instances might be mentioned. But always whether as interest, a per centum, an amount, or a sum, these additions were to be collected in the same manner as the tax and as part of it. The word “ penalty ” was not used with respect to any of these amounts which were to be added to the tax, but they were always referred to as interest, or a specified per centum, or as an amount, or as a sum, although they were in the nature of a penalty. In the provisions with reference to the excise taxes any additions to be collected, when distinguished from interest as such, were specifically referred to as a penalty.

In the provisions with relation to the estate tax, we find interest is to be added to such a portion of the tax as is not paid within one year and six months after the decedent’s death. In section 407 of the revenue act of 1921 there is a provision for the payment of interest at the rate of 10 per cent upon the “ amount ” of any additional estate taxes found to be due. Another provision of the statute requires “ 25 per centum of the amount ” of the (estate) tax to be added where there is a failure to file a return, and in case of a false or fraudulent return that there shall be added to the tax 50 per cent of its amount.

These different provisions tend to show that the use of the word “ sum ” was for the purpose of making it clear that the statute covered amounts which were required to be added to the taxes, although they were not specifically designated as either taxes or penalties. We think it can be definitely stated that, unless the intent of Congress is otherwise indicated, there is nothing in the use of the word 11 sum ” which would make it refer to a part of the tax as distinguished from the whole of the tax in the manner claimed by defendant.

We think also that other legislative action indicates the intent of Congress and the construction which that body placed upon the sections of the Revised Statutes under consideration.

In section 281 of the revenue act of 1924 (now embodied in section 322 of the revenue act of 1928) a provision was inserted with reference to income and excess-profits taxes to the effect that a credit or refund should not “ exceed the por tion of the tax paid during the four years immediately preceding the filing of the claim.” (Italics ours.) The Solicitor of Internal Bevenue rendered an opinion which in substance held that without this language there would be nothing to prevent any amount erroneously collected from being recovered, even though a recovery of part of the payment, standing alone, would have been barred by the statute of limitations. As far as we can ascertain, this seems to have been the practice of the Internal Bevenue Bureau with reference to amounts recoverable on refund claims up to the time of the revenue act of 1924.

The Solicitor of Internal Bevenue correctly held in the opinion, to which we have before referred, that Congress clearly intended by the change in the revenue act of 1924 to make it plain that where any “ portion ” of the tax had been paid at a time barred by the statute of limitations, such portion could not be recovered after the revenue act of that year went into effect. Or, in other words, Congress thereby required that the practice of the bureau should be changed in this respect with reference to the taxes to which section 281 of the revenue act of that year applied. But this section applied only to income and excess-profits taxes and if Congress intended to have the practice of the bureau changed as to estate taxes also, it would seem as if it would have made the section apply to all internal-revenue taxes, or specified estate taxes along with income and excess-profits taxes. This it did not do, and we think its failure so to do tends to show that it intended that a different rule should be applied where it was sought to recover estate taxes wrongfully collected.

What we have said above shows that the language of the statute is ambiguous and its construction doubtful. The general rule in such cases is that the doubt should be resolved in favor of the taxpayer, and we may properly turn to the committee reports in order to ascertain the intent and purpose of Congress. A consideration of these reports, as set out below, will show that they tend to support the contention of plaintiff.

Clause (2) of subdivision (b), section 281, of the revenue act of 1924, which gives rise to the controversy presented by the demurrer in this case, was inserted by reason of the change made by section 281 of the revenue act of 1924 in section 252 of the revenue act of 1921.

The revenue bill of 1924, as it passed the House, shortened the period of limitation within which a claim for refund might be filed from five years after the return was due, as provided by section 252 of the revenue act of 1921, to four years after the date of payment of the tax and did not contain a provision which was finally inserted in this section— section 281 — by subdivision (b) (2). The report of the Committee on Ways and Means, No. 179, 68th Congress, 1st session, stated:

“ The limitation on credits and refunds contained in the first proviso of section 252 of the existing law has been changed in two principal respects. The date from which the period of limitation runs has been changed from the due date of the return to the date of the payment of the tax. Logically, the period of limitation should run from the date of payment, since it is at that time that the right accrues. Again, the complicated provisions of the present section with reference to the length of the periods of limitation, which vary from two years from the time the tax was paid to six years from the time the return was due, have been simplified by fixing the period at four years.”

The Senate Committee on Finance, amending section 281, inserted a provision therein restricting the amount of a credit or refund to a portion of the tax paid during the four years immediately preceding the filing of the claim, and, after stating the same reasons for the change in the provisions of section 252 of the existing law as had been given in the report of the Committee on Ways and Means, stated, in addition in its report No. 398, page 33, that —

“ In order that a late payment of a small portion of the tax due may not extend the time for filing a claim for refund of the entire tax, a limitation has been inserted by the committee restricting the amount of a credit or refund to the portion of the tax paid during the four years immediately preceding the filing of the claim.”

The amendment, with slight change, was agreed to in conference and the statement in the conference report, No. 844, by the managers on the part of the House appears at pages 24 and 25, as follows:

“Amendment No. 117: The Senate amendment rewords subdivision (b) of section 281, in order to restrict the amount of a credit or refund to the portion of the tax paid during the four years immediately preceding the filing of a claim therefor.' The House recedes with an amendment providing that if no claim was filed the amount of the credit or refund shall not exceed the portion of the tax paid during the four years immediately preceding the allowance of the credit or refund.”

We think these extracts from the reports of the committees of the House and Senate indicate that in the view of Congress, unless a special provision was inserted making recoverable only that part of the tax which was paid within the period of limitations, such period would date from the time when all of the tax was paid.

For the reasons above stated, we resolve the doubt in favor of the plaintiff and it is ordered that the demurrer be overruled.

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

ON MOTION FOR RECONSIDERATION

Green, Judge,

delivered the opinion of the court:

The motion for reconsideration has been so exhaustively and ably argued that we think nothing further is left to present in the matter and therefore will proceed to a determination of the question presented by the argument on behalf of the defendant.

Two points are especially emphasized in the brief presented by defendant’s counsel: The first is that no recovery can be had on the second claim for refund filed by plaintiff, for the reason that it presented only the same grounds as were contained in plaintiff’s first application, which was rejected and upon which, as defendant contends, a recovery is barred by the statute of limitations.

The other contention is that when the word “ tax ” or the words “ such tax ” are used in the statutes which fixed the limitation of recovery in this case, they refer not to the whole of the tax assessed and paid by the taxpayer but to that portion of the tax which was paid within the period of limitations fixed for instituting an action to recover a refund therefor, and in support of this proposition it is urged that such has been the uniform construction and application of the law by the Treasury Department. On behalf of the plaintiff it is insisted that the various revenue statutes enacted for the purpose of imposing income and profits taxes and also those imposing estate taxes show clearly that it was the intent and purpose of Congress to use the words “ the tax ” or “ such tax ” as meaning the whole of the tax paid by the taxpayer, and that when it was intended to limit the application of the law to a portion of the tax it was specifically so stated. The ultimate question arising on these two opposing contentions is whether the statute of limitations began to run against plaintiff’s claim from the date of a payment on the tax for which recovery is sought, or whether the statute did not begin to run until all of the tax was paid. This obviously depends on the proper construction of the statutes which are applicable. How these statutes should be construed will be first considered and determined.

As a preliminary to the discussion of these matters it is well to examine not only the statutes which were applicable at the time involved in the instant case, but the course of legislation since, and counsel for the respective parties have both treated the course of legislative action as having an important bearing in determining the intention of Congress and have devoted the greater part of their arguments to this branch of the discussion. A brief general statement will, we think, be helpful in this connection.

Beginning with the act of 1921, section 3228 of the Revised Statutes has been incorporated in the various revenue acts up to the act of 1928. This statute required “ all claims for the refunding * * * of any internal-revenue tax ” to “ be presented to the Commissioner of Internal Revenue within four years next after payment of such tax, penalty, or sum.” Its provisions are general in their terms and apply to all internal-revenue taxes. Commencing with the revenue act of 1916, Congress began to differentiate between estate taxes and income and profits taxes with reference to the time for presenting claims to the commissioner, and has continued this difference with respect to these provisions ever since. These differences will be found in a comparative statement made in the brief of the plaintiff, but it is not necessary to set out all of them here.

Commencing with the act of 1924, section 281 (b), Congress provided with reference to refunds of income and excess-profits taxes that the amount of the credit or refund should not “ exceed the portion of the tax paid during the four years immediately preceding the filing of the claim or, if no claim was filed, then during the four years immediately preceding the allowance of the credit or refund.” It should be specially noted that in tins section for the first time it was provided that the refund should not exceed “ the portion of the tax paid ” within the time limit fixed for fifing the claim, and, as stated above, this provision applied only to income and profits taxes. The time for presentation of claims for refund of estate taxes was controlled by the incorporation in the 1924 act of section 3228, with a slight amendment. As so amended, section 3228 provided that with the exception of claims coming under section 281, all claims for refund must be presented to the Commissioner of Internal Revenue “ within four years next after the payment of such tax, penalty, or sum.” So far as estate taxes were concerned, there was no mention or reference to a “ portion of the tax.” (See section 1012, revenue act of 1924.)

The revenue act of 1926, concerning which much is said in argument of counsel, required claims for a refund of income or profits taxes arising under the act to be presented within three years from the time the tax was paid and within four years under prior acts, and again included the same special prolusion with reference to the portion of the tax paid preceding the filing of the claim. With reference to estate taxes, the 1926 act provided that all claims for the refunding of “ the tax ” must “ be presented to the commissioner within three years next after the payment of such tax,” and made no mention or reference to a “portion.of the tax.” The 1928 act did not revise the estate-tax provisions, and included only two short provisions with reference to the estate tax, neither of which has anything to do with the matter of limitations. With reference to income and profits taxes, the same provisions were inserted as have been shown to have been made under the 1926 act.

It will thus be seen that in passing the revenue acts Congress began to use the time of the pajunent of a portion of the tax as a basis for fixing the time for presenting claims for refund for the first time in the 1924 act, and made this provision apply only to income and profits taxes; that separate and distinct provisions were enacted with reference to limitations on refunds of estate taxes; that these provisions contain no reference to the time of payment of a “ £>ortion of the tax ”; and that Congress has consistently pursued this practice in the later acts. We know of no way in which Congress could make it more evident that it intended this provision with reference to the time of payment of a portion of the tax to apply only to income and profits taxes, except by stating specifically with reference to the estate taxes that it should not apply thereto. Negative legislation in this form is seldom used, and the intent of Congress appears so clearly and plainly without such an addition that there was no necessity whatever for it. In this connection it may be said that numerous instances in the various revenue acts show that Congress has always been careful to differentiate between the use and meaning of the word “ tax ” and the words “ a portion of the tax,” and where the provisions of the act were intended to have any application to a portion of the tax it has been so specified. There are so many instances of this kind that space does not permit reference thereto, but they are cited in the plaintiff’s brief on the matter now before the court.

It is strenuously insisted in the argument for defendant that the uniform practice of the bureau has been in accordance with the construction for which its counsel now contends. No published regulation of the department has been cited to support this statement with reference to the bureau’s practice except L. O. 1116, III-l C. B. 350, which does not rule on the precise point now involved but from which the inference may possibly be drawn in favor of the rule for which the defendant now contends. Later an opinion was rendered by the Solicitor of Internal Eevenue (to which reference was made in the original opinion on this case by the court) which expressly stated that the words “ the tax ” as used in the act of 1924 referred to the whole of the tax and not to a portion thereof, and in effect that only by the special provision with reference to a portion of the tax did the date of payment thereof become material. There seems, therefore, to have been no settled or consistent practice on the part of the bureau. However this may be, if the bureau practice was not authorized by law, the law would not be changed thereby, or, in other words, the law is not nullified by the fact that the bureau did not conform to it.

It is said in argument on behalf of defendant that the provisions of the 1924 act which confine the recovery upon a refund to the portion of the tax paid within the period of limitations', are plain and unambiguous. With this we entirely agree but, as we have hereinbefore shown, these provisions apply only to income and profits taxes, and Congress enacted otherwise with reference to estate taxes. We think that Congress by its legislative action has itself placed a construction on the language under discussion, and that in its various enactments with reference to the presentation of claims to the commissioner and limitations on actions begun thereon, when the word “ tax,” or the words “ the tax ” are used, the whole of the tax was intended and when a statutory provision was intended to apply to a portion of the tax it was specifically so stated.

Section 3228, which is set out in the original opinion, prescribes the time within which claims for refund must be presented to the Commissioner of Internal Eevenue. Section 3226, also set out in the original opinion, fixes the time within which suit may be begun on a claim for refund. In both of these sections, the word “ tax ” is preceded by the word “ such.” What we have said in the original opinion, we think, shows that the use of the word “ such ” in no way limits the word “ tax ” to a portion of the tax, but it may be noted in addition that although Congress in the 1924 and 1926 acts reenacted sections 3226 and 3228 as a part of these revenue acts, it evidently considered that these sections did not refer to a portion of the tax and therefore inserted a special provision limiting the recovery on refunds on income and profits taxes accordingly.

When section 3226 and section 3228 are construed in accordance with the views above expressed, it will be seen that the action is not barred by the provisions of either section. The suit would be in time under section 3226 for the reason that it was begun within five years from the time the last payment was made and the whole of the tax paid, which was May 16,1925. It would not be barred by section 3228 because the claim was presented to the commissioner within four years after this payment was made. This will clearly appear upon further consideration of the law and the facts in the case as we must assume them to be in ruling on the demurrer.

Section 3226 provided that suit should not be begun upon a claim for refund or credit “ after the expiration of five years from the date of the payment of such tax, * * * unless such suit or proceeding is begun within two years after the disallowance of the part of such claim to which such suit or proceeding relates.”

We think it clear that the last clause of the provision is not a limitation upon the one that precedes it, although it may operate to extend the period stated therein, and that this section gives the taxpayer the right in any event to bring his suit within the five-year period, but he may not bring it thereafter unless the provisions of the second clause are complied with. The petition was filed April 29, 1930, which was within five years of the time when the whole of the tax was paid. Under our construction of the law, section 3226 does not bar the action.

In applying the provisions of section 3228, with reference to the time of the presentation of the claim to the Commissioner of Internal Revenue, it is immaterial whether we follow the contentions made on behalf of the defendant or those on behalf of the plaintiff with reference to the filing and submission of the first and second claims for refund made by plaintiff. The defendant contends that after the filing of the first claim plaintiff submitted additional proof which amounted to ah amendment of this claim; that the original claim having been rejected the second claim was of no avail because it was substantially the same as the first claim when amended. But under the holding that we have made above it is immaterial in applying section 3228 whether we use the date when the amended claim was presented to the commissioner, if it was amended as defendant alleges, or whether we use the date when the second claim was presented to the commissioner, or even if we use the date when the first claim was presented. In any event, the claim was presented within four years from May 16, 1925, as will appear from a review of the facts in the case, as stated in the petition.

The first claim for refund was filed October 2, 1926, and on June 29, 1927, plaintiff was advised that the claim for refund was allowed in part and rejected in part. The thirteenth paragraph of the petition recites that plaintiff thereafter presented to the commissioner proof of certain items of administration expenses which had been paid by the plaintiff and requested that the commissioner allow them as additional deductions for taxation purposes, and also requested a reconsideration of the bureau’s determination with reference to the claim filed. The petition does not state the date or dates when this proof was submitted, but it must have been prior to February 24, 1928, when the commissioner wrote the plaintiff in effect that the reconsideration had been granted and the request made had been carefully examined, with the result that it should be considered that—

“ * * * the sum of $16,250 commissions on the sale of real estate, and $10,191.20 additional administration expenses, should be allowed as deductions from the gross estate.”

The letter also stated in substance that the bureau’s conclusion as to the amount which was subject to refund was not affected and that no greater amount than had already been ordered could be refunded for the reason that the claim was not filed within four years succeeding the date when the amount sought to be refunded was paid. On March 1, 1928, the plaintiff filed a second claim for refund, and about June 28, 1928, the plaintiff received a certificate of overassessment dated May 25, 1928, which repeated in substance the statements contained in the letter of February 24,1928, and inclosed a check for the amount which the commissioner had found to be refundable, to wit, $1,727.60, with interest thereon.

We have possibly set out these matters more in detail than is necessary for an understanding of the situation. The important fact is that if the original claim was amended by the proof submitted, as defendant claime, the petition shows that the claim of plaintiff was reconsidered, a different decision rendered, and that this amended claim (if it was amended) was presented to the commissioner within the required time. So also while it is not necessary to hold that the second claim presented new matter, and therefore can be considered by the court, the presentation of the second claim was within four years from the time when the tax was paid as we construe the law.

We have examined the cases cited on behalf of defendant and do not find them applicable.

The statement in the original opinion to the effect that if plaintiff recovered herein the recovery must be based on the second of the claims for refund filed is modified to the extent and in the manner set out above, otherwise we adhere to our former opinion. The motion for reconsideration of the demurrer and the ruling thereon is accordingly overruled.

LittletoN, Judge,

concurring':

Much of the argument in defendant’s brief on the motion for reconsideration of the demurrer is based upon what is claimed to have been bureau practice and on what took place in the House and Senate with reference to certain bills.

I agree with the foregoing opinion, but a word might be said with reference to what occurred in Congress and also with reference to the Bureau of Internal Kevenue rulings.

Extemporaneous answers to questions propounded in rapid-fire debate in Congress are of little weight, if any, in determining the construction of statutes, but even if they should be so treated the quotations which are made from the debates in Congress do not in any way help the defendant’s case. The debate which took place in the House, and from which quotations are made in the arguments both for plaintiff and for the defendant, was with reference to a bill separate from the general revenue acts and which amended section 252 of the revenue act of 1921 with reference to certain matters which have no bearing on the case now before the court. This is shown by the letter of the Secretary of the Treasury showing the purpose of the bill submitted to the House in connection therewith. The discussion was with reference to the meaning of this particular bill and not with reference to the provisions which are now under consideration and is, therefore, of no assistance in determining the meaning of these provisions. What took place in the Senate on the discussion of the amendment inserted in the 1924 act with reference to the time of payment of a portion of the tax seems to support the contention of the plaintiff rather than that of the defendant. The report of the Senate committee shows that the provision with reference to the payment of a portion of the tax was inserted “ in order that a late payment of a small portion of the tax may not extend the time for filing a claim for refund of the entire tax.” This means that in the absence of this provision a late pay7. ment would have such an effect. It is urged that in commenting on this provision Senator Smoot stated that it only carried into effect what had been the prior action of the bureau. If the statement of Senator Smoot had reference to section 281 (b) rather than section 281 (a), which appears to have been under consideration at that time, there were never any published regulations to that effect prior to the revenue act of 1924. It has often been held that where the’ bureau’s practice with reference to an ambiguous statute is long continued and Congress takes no action to modify or change it, the fact that Congress does not see fit to act under the circumstances is evidence that the bureau’s action expressed the intention of Congress. But it has not been held that where Congress found that the Bureau of Internal Revenue had been acting without authority of law and concluded to give it such authority in the future as it had been exercising in the past, the action of Congress tended in any way to ratify the illegal acts.

Subdivision (b) of section 281 is, by its terms, specifically limited to income, war-profits, or excess-profits taxes specified in subdivision (a). The Commissioner of Internal Revenue may have taken the position in certain cases that the refund should be limited to that portion of the tax paid within four years prior to the filing of claims which have never appeared in any published reports and it is possible that the officials of the Treasury Department who called the attention of the Congress to the need for the amendment contained in section 281 of the 1924 act stated that the proposed amendment was the same as the regulations in force. Nevertheless, the fact that the chairman of the Senate Finance Committee stated on the floor of the Senate “ this subdivision has been written to limit the amount of refunds and credits to the portion of the tax paid within the four years preceding the filing of the claim, in order that the taxpayer may not, by a small payment, reopen the entire case,” and the fact that the report of the Finance Committee on.section 281 (b), No. 388, page 33, 68th .Congress, 1st session, stated that the statute had been amended “ in order that a late payment of a small portion of the tax due may not extend the time for filing a claim for refund of the entire tax,” show that it was recognized that any such departmental interpretation of the statute was erroneous and without support in law. This is shown by the statements contained in Solicitor’s Memorandum 3380, IV-1 C. B. 80.

There were no published regulations prior to the enactment of the revenue act of 1924 which provided that the ' amount of the refund should not exceed the portion of the tax paid within the two or four year period, as the case might be, prior to the filing of a claim for refund. The only published ruling which gives any indication that such a construction might be placed upon the refund statute is L. O. 1116, III-l C. B. 350, where, under the revenue act of 1921, the opinion was expressed that a claim for the refund of Federal estate taxes might be allowed since the amount paid within four years prior to the filing of a claim did not exceed the amount claimed. It was not necessary in that ruling to pass upon a case where the refund sought was of an amount greater than the amount paid within the four-year period. The correct rule in such a situation is set out in S. M. 3380, supra, which refers to L. O. 1116, supra, and holds that in such a case the statute would not begin to run until the last payment, regardless of whether that payment was greater or less than the amount claimed.

Solicitor’s Opinion 833, 1 C. B. 249, cited by the defendant, simply holds that section 252 of the revenue act of 1918 does not take away the rights of the taxpayer under section 3228 of the Bevised Statutes to file a claim for refund within two years after the cause of action accrued, or the date of the payment of the tax under protest. T. D. 3416, 1-2 C. B. 228, likewise states the requirement that claims for refund must be presented to the commissioner within four years after the payment of the tax, but does not limit the refund to the portion paid within the four-year period. In I. T. 1269, I — 1 C. B. 311, it is held that a claim for the refund of income taxes imposed by the revenue act of 1913 was barred by section 3228 of the Bevised Statutes because it was not filed until more than two years had elapsed after the payment of both the original and the additional tax, thus apparently recognizing that if the refund claim had been filed within two years after the payment of the additional tax, the claim would not have been barred. T. D. 3457, II-l C. B. 177, states only that after the amendment of March 4, 1923, a claim for the refund of income, war-profits, and excess-profits taxes may be allowed where the claim is filed before the expiration of two years from the time the tax was paid. T. D. 3462, II-l C. B. 180, likewise fails to limit the refund in any way to the amount paid within two years prior to the filing of the claim.

Article 1807 of Regulations 65, under the revenue act of 1924, provides that the refund is limited to the portion of the tax paid within four years prior to the filing of the claim for refund, and this is the first issued regulation which so limits the refund of any internal revenue taxes. Article 1308 of Regulations 65, which refers to refunds under prior acts, does not so limit the claim. This, it seems, is due to the express language of section 28Í (f) of the 1924 act which provides that section 281 shall not bar from allowance a claim for credit or refund filed prior to the act which, but for such enactment, would have been allowable, thus showing the recognition by Congress and by the Treasury Department that prior to the 1924 act the refund was not limited to the portion of the tax paid within the two or four-year period prior to the filing of the claim for refund.

The regulations prior to the 1924 act do not support the position taken that the Commissioner of Internal Revenue interpreted the prior acts to mean that refunds were limited to the portion of the tax paid within the two or four-year period prior to the filing of the claim.

The rulings and regulations cited do not show, as contended by counsel for the defendant, “ a consistently followed recognition by the Commissioner of Internal Revenue that his authority to refund all internal-revenue taxes, including estate taxes, was-under R. S. 3220 and 3228, both prior and subsequent to the 1921 amendment of the latter, limited in amount to a sum not to exceed the tax or portion of total tax paid within two and four years, respectively, immediately preceding the filing of a claim therefor, i. e., that a refund claim was allowable only if and when filed within two and four years, respectively, of the payment of the particular tax or portion thereof sought to be recovered.” And S. M. 3380, supra, obviously is not susceptible of that interpretation.

Williams, Judge, and Booth, Ohief Justice, concur in the foregoing opinions.

Whaley, Judge, took no part in the decision of this case on account of illness. 
      
       The wording of the portion omitted is slightly changed in the 1928 act from that in the 1926 act, but the change is not material to the case under consideration.
     
      
       See section 250 of the revenue acts of 1918 and 1921.
     
      
       See subdivision (e) of section 250 of the revenue act of 1918.
     
      
       See subdivision (f) of section 250 of the revenue act of 1918.
     
      
       See the third paragraph of section 3176 as amended by section 1311 of the revenue act of 1921.
     
      
       See S. M. 3380, C. B. IV-1, p. 80.
     
      
       Certain amendments were made to section 3228 not material to the decision of this case.
     