Pusey

This action was brought January 14, 1927, by the government to recover $11,287.-10 which had theretofore been refunded to the appellees because it was a portion of the estate tax levied upon the estate of William H. Maekiimon and was returned upon the theory that in levying the tax the Commissioner was in error in including in the estate taxed all the community property of the decedent. Subsequently the Supreme Court of the United States in United States v. Robbins, 269 U. S. 315 , 46 S. Ct. 148 , 70 L. Ed. 285 , held that, in the event of the death of the husband, the whole of the California community property in his estate was subject to the estate tax. Thereupon this action was brought to recover the amount so erroneously refunded to the appellees. It is not questioned that such an action ean be maintained. Talcott v. United States (C. C. A.) 23 F.(2d) 897 ; United States v. Standard Spring Mfg. Co. (D. C.) 23 F.(2d) 495 . The appellees defended the action by interposing what they styled a counterclaim. This counterclaim is based upon the contention that the original levy of the estate tax was erroneous for an entirely different reason, that is, that there was included in the…