Bertha Soltermann v. United States

This is not the usual case in which the taxpayer is suing to obtain a refund of taxes allegedly paid contrary to law; rather, here the United States is suing to recover a refund (as the government is permitted to do pursuant to 26 U.S.C. § 7405 (b)) where the refund is alleged to have been allowed by mistake and paid by the Commissioner. It seems to us to follow inescapably that the United States, as plaintiff in this case, bears the ultimate burden of proof to show not only that some amount has been erroneously refunded but also how much that amount is, for otherwise the court is without guidance in entering an appropriate judgment.

So far as we can see, the plaintiff does not contest the foregoing proposition; but it argues that the United States has maintained that burden of proof by a prima facie showing indicating that all of the refund was made in error, thus casting upon the taxpayer the burden of going forward with evidence — which the taxpayer failed to do —segregating the refund, if segregation is called for, to indicate how much of the refund was proper and not subject to recovery in this action. We know of no authority to support this position taken by the…