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A. S. Kreider Co. v. United States.

December 17, 1940

A. S. KREIDER CO.
v.
UNITED STATES.



Appeal from the District Court of the United States for the Middle District of Pennsylvania; Albert L. Watson, Judge.

Author: Jones

Before CLARK, JONES, and GOODRICH, Circuit Judges.

JONES, Circuit Judge.

The plaintiff filed suit in the District Court against the United States to recover an overpayment of income taxes for the year 1920 which had theretofore been determined by the Commissioner of Internal Revenue but had been withheld by him from certification for refund on the ground that the taxpayer's claim was filed belatedly.

By its affidavit of defense and various motions for summary judgment, the defendant asserted that the suit was barred by the statute of limitations and that the District Court was also without jurisdiction by reason of Section 3226 of the Revised Statutes.*fn1 The District Court, concluding that the suit had been instituted too late, entered judgment for the defendant. An appeal followed and this court then held, one judge dissenting, that Sec. 3226, R.S., was impliedly amended by the Tucker Act, Judicial Code, Sec. 24, par. (2),*fn2 "so as to permit six years from the final date of payment as the time within which suit may be commenced, when the suit is against the United States and is brought in the District Court". See 3 Cir., 97 F.2d 387, 388. As the suit had been instituted within the six-year period, the judgment was accordingly reversed and the cause remanded, with directions to the District Court "to consider and determine the merits of the controversy".

At the ensuing trial the only defense interposed was that plaintiff's right to refund for the amount of the overassessment in suit was barred by Sec. 284(b) and (g) of the Revenue Act of 1926, 26 U.S.C.A. Int. Rev. Acts, pages 220, 222. The claim for refund had been the occasion of the Commissioner's determination of the overassessment for which the plaintiff seeks recovery. The trial court, being of the opinion that the claim had been filed timely, entered judgment for the plaintiff (the amount of the unrefunded overassessment not being in dispute). Thereupon, the defendant took the present appeal.

Although the matter now here for review is the action of the court below in confirming the timeliness of the taxpayer's cliam for refund, the appellant asks us to reconsider and reverse the former decision of this court with respect to the period of limitations applicable to the institution of the suit and the question of the District Court's jurisdiction. This, we may not justifiably do, even though we should now be inclined to disagree with the former decision. (No implication of any such disagreement on our part is intended.) The court below faithfully followed this court's mandate, as it was bound to do. Thereby it was precluded from reconsidering the matters which the appellant seeks to reopen here. Cf. In re Sanford Fork & Took Co., 160 U.S. 247, 255, 256, 16 S. Ct. 291, 40 L. Ed. 414. See, also, Federal Communications Commission v. Pottsville Broadcasting Co., 309 U.S. 134, 60 S. Ct. 437, 84 L. Ed. 656. The former decision of this court became the law of the case and, once the law of a case is settled by an appellate court, it is settled for that tribunal as well as for the trial court, save for new or different facts. Toucey v. New York Life Insurance Co., 8 Cir., 112 F.2d 927, 928. To reverse the court below, in a wholly unchanged factual situation, for doing what this court directed should be done would, to say the least, be a positive disservice to the orderly administration of justice. A second appeal may not be used to raise questions in the same case alrady put at rest by the same court upon a prior appeal. Toucey v. New York Life Insurance Co., supar.

Coming, then, to the one question properly within the scope of the present appeal, we think that the court below correctly held that the claim for refund was filed in time and that the plaintiff is entitled to recover the overpayment of taxes in the amount determined by the Commissioner which still remains unrefunded.

The plaintiff, a Pennsylvania corporation, filed its income tax return on March 15, 1921, for the calendar year 1920 and paid the taxes due, as shown thereon, in equal quarterly installements during the year 1921. The Collectors to whom this tax was paid were not in office at the time the suit herein was filed. Prior to June 15, 1926, the plaintiff filed an income and profits tax waiver extending the statutory period of limitations for the assessment of taxes for the year 1920 to December 31, 1926. On April 10, 1926, the Commissioner of Internal Revenue advised the plaintiff of a deficiency in tax for the year in question in the sum of $1,362.50, which was thereafter duly assessed and, still later, paid by the plaintiff on July 28, 1926. On March 25, 1929 (which was within four years after payment of the final portion of its 1920 taxes) the plaintiff filed a claim for refund of part of the taxes paid for the year 1920, $13,471.18 of the amount claimed having been paid in 1921 and $1,362.50 on July 28, 1926, as above stated.On September 9, 1929, the Commissioner signed a Schedule of Overassessments which showed a "net amount refundable" to the plaintiff in the sum of $1,362.50, with interest. A check for this amount was later mailed to the plaintiff along with a certificate of overassessment showing that the total overassessment was $14,833.68 but that $13,471.18 thereof was barred by the statute of limitations. The difference represented the amount of the refund then made. The plaintiff received the check and certificate of overassessment in October 1929. On March 7, 1932, the plaintiff filed its statement of claim in the suit below to recover the unrefunded balance of the overassessment as shown by the certificate. Whether the plaintiff is entitled to recover depends upon whether or not the Commissioner was correct in his conclusion that $13,471.18 of the plaintiff's claim for refund was barred by the statute of limitations under the pertinent Revenue Act (1926).

The portions of the Revenue Act, 1926, c. 27, 44 Stat. 9, 26 U.S.C.A. Int. Rev. Acts, pages 220, 222, which are material to the present question are as follows:

"Sec. 284. * * *

"(b) Except as provided in subdivisions (c), (d), (e), and (g) of this section -

"(1) No such credit or refund shall be allowed or made after three years from the time the tax was paid in the case of a tax imposed by this Act, nor after four years from the time the tax was paid in the case of a tax imposed by any prior Act, unless before the expiration of such period a claim therefor is filed by the taxpayer; and

"(2) The amount of the credit or refund shall not exceed the portion of the tax paid during the three or four years, respectively, immediately preceding the filing of the claim, or if no claim was filed, then during the three or four years, ...


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