is to be treated as a payment by the parties. But on December 24, 1934, the taxpayer did not discharge what he deemed a liability nor pay one that was asserted. There was merely an interim arrangement to cover whatever contingencies the future might define.' (Emphasis supplied.)
Here, in the instant case, we have the following: A return filed on January 13, 1950 by the plaintiffs containing a computed tax liability of $ 12,532.89 shown to be due and payable and enclosed therewith a check in that precise amount; no requests for an extension of either the time for filing the return or payment of the tax; no directions or arrangements to place said remittance in the 'suspense account'; and no indication that said remittance was otherwise a deposit, or a tentative payment. Further, the Collector issued a form receipt for this remittance dated Jan. 13, 1950 and bearing the Collector's stamp marked, 'Paid, Jan. 18, 1950' (Exhibit P-1). The check was processed and the amount thereof was not placed in the Collector's suspense account but credited to the taxpayer's account on January 13, 1950 (Assessment List, Exhibit D-1). Subsequently, an interest payment of $ 14.42 was made on January 19, 1950 covering interest accruing on $ 12,532.89 from January 6 to January 13, 1950. A form receipt for this was also issued by the Collector dated Jan. 19, 1950 and, similarly, bearing the Collector's stamp marked, 'Paid, Jan. 20, 1950' (Exhibit P-2). This interest payment is also shown on the Assessment List marked as Exhibit D-1. The $ 7,000 and $ 829.55 remittances made in behalf of the subsequent deficiency were actually sent to the Collector on October 30, 1950 and January 15, 1951, respectively, but were not credited to plaintiffs' account by the Collector until January 23, 1951 and January 17, 1951, respectively, thereby bringing their treatment clearly within the reasoning of the Rosenman case, supra, and constituting the basis for the refund allowed.
It is the conclusion of the Court that the plaintiffs here deemed an estate liability of $ 12,532.89 to be due and payable on January 13, 1950, or previously thereto inasmuch as a week's interest thereon was paid by the plaintiffs on January 19, 1950. The plaintiffs made no protest as to the amount due nor did they indicate that they would contest the tax liability. There were no 'interim arrangements,' 'deposits' or 'tentative payments.' The remittance was sufficient and effective to discharge what they deemed to be a liability in its entirety. For as far as they were concerned the return was proper, and sufficiently defined their entire tax obligation and liability. The defendant treated the remittance as payment of a defined tax liability due and payable on the aforementioned date, as indicated by the receipt issued therefore (Exhibit P-1). Thus, inasmuch as both the plaintiffs-taxpayer and the defendant-government have treated the remittance of $ 12,532.89 on January 13, 1950, and stamped 'Paid' by the Collector on January 18, 1950, as payment of the tax liability due from the estate, it is the opinion of this Court that under these circumstances said remittance does constitute 'payment' within the purview of Section 910. Therefore, the plaintiffs are barred from asserting their claim for refund, said claim having been made on January 5, 1954, more than three years after payment of the $ 12,532.89 tax on January 18, 1950, the day the receipt therefor was stamped 'Paid' by the Collector.
The same result would obtain if the date of payment was considered to be February 14, 1950, the date of the signing of the Assessment Certificate by the Commissioner. The plaintiffs' contention that notice of formal assessment must be sent to the taxpayer within a reasonable time is without merit. Suffice it to say that the three year limitation runs from the date of payment (from which date the taxpayer has a fair opportunity to determine whether he has a claim for refund) and not from the date of assessment of such tax. The assessment of tax of which they claim they had no notice was the selfsame tax liability which they themselves had determined to be due and payable and in fact remitted on January 13, 1950.
Motion for summary judgment in favor of the plaintiffs is denied and the motion for summary judgment in favor of the defendant is granted.
Counsel will prepare an appropriate order.