
    VAN DYKE et al. v. KUHL.
    Civ. No. 4368.
    District Court, E. D. Wisconsin.
    Jan. 19, 1948.
    Howard R. Johnson, of Milwaukee, Wis., for plaintiffs.
    E. J. Koelzer, Asst. U. S. Atty., of Milwaukee, Wis., and James P. Garland, Asst, to the Atty. Gen., for defendant.
   DUFFY, District Judge.

This action having come on for trial at the October, 1947, Term of said Court, the parties having stipulated the facts and having been tried before the Court, the Honorable F. Ryan Duffy, District Judge presiding, on the 23rd day of October, 1947, Robertson and Johnson, by Howard R. Johnson, appearing for the plaintiffs and E. J. Koelzer, Assistant United States Attorney, and James P. Garland, Attorney, Tax Division Department of Justice, appearing for the defendant; and on the stipulation of the parties, the arguments of counsel and being advised in the premises, Findings of Fact and Conclusions of Law are upon such stipulation and upon all the records, papers and proceedings herein made and filed as follows:

Findings of Fact.

1. That the Court has jurisdiction of this action under Title 28 U.S.C.A. § 41 (20).

2. That Anne Hamilton McIntosh died testate on the 13th day of February, 1941.

3. That the plaintiffs, Douglass Van Dyke, Clark M. Robertson and David E. Howe are the executors under the will of Anne Hamilton McIntosh.

4. That on December 2, 1941, plaintiffs on behalf of Anne Hamilton McIntosh filed a Federal Estate Tax return showing a tax due of $120,326.42, which plaintiffs paid.

5. That subsequently the Treasury Department assessed a deficiency tax of $49,-085.57 with interest thereon in the sum of $3,452.09, which tax and interest plaintiffs paid on August 17, 1943.

6. That in September of 1944 plaintiffs commenced an action in this Court to recover the sum of the deficiency tax aforesaid, and on the 29th day of October, 1945, Judgment was entered for the plaintiffs against the defendant, Frank J. Kuhl, in the sum of $26,863.28, together with interest amounting to $3,541.46, or a total of $30/104.69, which amount together with interest has been duly paid.

y. That in prosecuting the aforesaid action to Judgment plaintiffs incurred expenses in the amount of $2,302.85 for attorneys fees and disbursements.

8. That plaintiffs timely filed a Claim for Refund which was disallowed by the Treasury Department.

9. That the aforesaid expenditures, in the amount of $2,302.85, are deductible as administration expenses in the determination of the Federal Estate Tax in the Estate of Anne Hamilton McIntosh.

10. That the plaintiffs have paid to the defendant on account of Federal Estate Tax the sum of $414.02 in excess of the amount lawfully chargeable and are entitled to recover that amount together with interest as provided by law.

Conclusions of Law.

1. That plaintiffs are the acting executors under the will of Anne Hamilton McIntosh, deceased.

2. That the expenditures for attorneys fees and disbursements in the amount of $2,302.85 are deductible as administration expenses in the determination of the Federal Estate Tax.

3. That plaintiffs are entitled to Judgment adjudging that there is due to them from the defendant the sum of $414.02, together with interest thereon as provided by law.  