Rasmussen

(after stating the facts as above). On the writ of error two questions are presented: First, whether on March 16, 1925, the distraint proceeding was barred by the internal revenue law of 1924 ( 43 Stat. 253 ); and, second, whether the answer, by alleging that the $1,000 which was offered in compromise was subsequently applied on the assessment for the year ending January 31, 1919, at the direction of the plaintiff, pleaded a voluntary payment, so as to bar recovery thereof.

Two income tax returns were filed by the plaintiff for the year ending January 31, 1919, a tentative return on March 15, 1919, and a complete return on June 16,1919. The warrant of distraint was issued six years and one day after the first return was filed, and five years and nine months after the second return was filed. The defendant contends that the statute of limitations began to run from the latter date. The pleadings disclose the fact that the second or complete return was only an itemized statement explanatory of the facts set forth in the prior return, and exhibited no additional or further tax liability than was disclosed by the former. The defendant relies upon the decision on the Appeal of Dallas…

(concurring).

If it be assumed that the period of limitations commenced to run on June 16, 1919, the date of the filing of the complete, return, under the rule of. Russell v. United States (decided by Supreme Court January 2, 1929) 49 S. Ct. 121 , 73 L. Ed. -, distraint proceedings were barred, and the collection of the tax was illegal, and *93 we therefore express no opinion upon the question whether the statute began to run upon the filing of the tentative return, March 15,1919.