Spalding

For the year 1930, appellee, Silsby M. Spalding, paid an income tax of $132,146.32. Thereafter, pursuant to § 3226 of the Revised Statutes, as amended by § *702 1103(a) of the Revenue Act of 1932, 26 U.S.C.A. §§ 1672-1673 , he claimed a refund of the entire amount of said tax, alleging that he had, in fact, no taxable net income in 1930. The claimed refund was granted to the extent of $4,404.27 only.

Thereafter, pursuant to § 3226, supra, and § 24(20) of the Judicial Code, 28 U.S.C.A. § 41 (20), appellee brought suit against appellant, the United States, 1 for $40,608.57 of the unrefunded portion of the tax. The case was tried by the court without a jury, trial by jury having been expressly waived. The trial court filed a written opinion (D. C, 17 F.Supp. 966 ) and special findings of fact and thereupon entered judgment in appellee’s favor for $40,034.82. Appellant seeks reversal.

The trial court’s findings of fact are not challenged. The facts found are as follows :

On March 21, 1929, pursuant to § 4 of c. 303, Statutes of California, 1921, p. 405, as amended (Stats. 1929, p. 12; Deer-ing’s General Laws, 1931, Act 6341, p. 3456), the State of California granted ap-pellee a…