This is an appeal from a summary judgment entered June 21, 1960, on motion of the defendant whereby it was “ordered, adjudged and decreed that plaintiff take nothing and that the action be, and is hereby, dismissed on the merits, each party to bear its own costs.”

The subject matter of this controversy is disclosed by appellant’s response to requests for admissions as follows:

In Paragraphs 1 to 6, inclusive, of appellant’s response to request for admissions, appellant admits that Exhibits A, B, C, D, E and F, attached to the re quest for admissions, are true, correct and complete copies of claims for refund for the calendar years 1951, 1952, 1953, 1954, 1955, and 1956. The remaining paragraphs of the admissions are:

Applicable portions of § 23 of the Internal Revenue Code of 1939, 26 U.S. C.A., are:

It does not appear from the record that appellant made or claimed deductions for theft loss in his computation of net income in any of his income tax returns for the years 1951 through 1956. After having been allowed a $1,000 deduction for non-business bad debt on his federal income tax returns for each of the years 1951 through 1957, appellant, on May 13, 1957, filed claims requesting refund of a part of his income taxes paid for the years 1951 through 1956 on the ground that he was entitled to a theft loss deduction of $5,000 as each of Gonek’s $5,000 notes matured and was not paid. The claimed theft loss was discovered in 1951 when appellant found that he had been deprived of any interest in the motel without payment. Here the Government does not insist as it did in Alison v. United States, 344 U.S. 167 , 73 S.Ct. 191 , 97 L.Ed. 186 , that the alleged theft loss should have been taken as a deduction in the year in which it occurred though discovered afterward, but contends that plaintiff’s claims for refund, filed May 13, 1957, years after the time that appellant admits he discovered that he had lost all of his interest in the motel, were untimely and cannot support this action.

Appellant’s claims for refund, the originals of Exhibits A to F attached to request for admissions, having been filed on May 13, 1957, more than three years after he could have claimed his theft loss deduction on his 1951 return which was due March 15, 1952, were not filed within the period of time prescribed by 26 U.S.C.A. § 322 , Internal Revenue Code 1939. Said section and subsequent amendments thereto provide that a claim for refund must be filed within three years from the time the return was filed or within two years from the time the tax was paid. In Hagan v. United States, 9 Cir., 239 F.2d 141, 143 , this Court stated:

Appellant’s claims for refund not having been filed within the period of statutory limitation are not and cannot be considered as claims for refund duly filed “according to the provisions of law in that regard,” and, therefore, by reason of the provisions of § 7422 of the Internal Revenue Code of 1954, 26 U.S.C.A., this action cannot be maintained.

While it is unnecessary for decision here to consider a supposed contention of appellant that the non-payment of the $35,000 purchase price for the motel is a business bad debt, in view of the fact that appellant prosecuted and appeared throughout these proceedings without the aid of counsel, it may be well to point out that such contention has no merit for the reason that such claim was not set forth in a timely filed claim for refund.

The judgment of the District Court is affirmed.

. “§ 7422. Civil Actions For Refund “(a) No Suit Prior To Filing Claim For Refund. — No suit or proceeding shaE be maintained in any court for the recovery of any internal revenue tax alleged to have been erroneously or illegally assessed or coEected, or of any penalty claimed to have been coEected without authority, or of any sum aEeged to have been excessive or in any manner wrongfully coEected, untfl a claim for refund or credit has been duly filed with the Secretary or his delegate, according to the provisions of law in that regard, and the regulations of the Secretary or his delegate established in pursuance thereof.