Gutzler
United States v. Gutzler
Opinion
Lead Opinion
Denman, J.
This is an appeal by the United States
from a judgment of the district court awarding a refund of excess profits tax Paid by the Trumble Refining Company, a dissolved corporation for the tax year 1917 The case was tned by the district court, the jury having been waived, and the appeal allowed before the new Federal Rules of Civil Procedure, 28 U.S.C.A. following section 723c, were adopted. The *189 facts are presented to us in a bill of exceptions.
The district court found, “That the correct tax liability of the Trumble Refining Company for the year 1917 is the sum of $3,389.19 and that the Trumble Refining Company overpaid its taxes for the year 1917 by the total sum of $16,341.68; that there is now due and owing to these plaintiffs for taxes thus overpaid for the year 1917 the total sum of $16,341.68, together with interest at the rate of 6% from the dates paid, $6,213.83 having been paid on May 22, 1923, together with interest of $1,646.36 or a total of $7,860.19, and the balance thereof, to wit $8,481.49 having been paid on June 14, 1918.”
To the decision and judgment on this finding there are but two pertinent assignments of error. (A) That the taxpayer’s claim for refund…
Concurring Opinion
Healy, J.
(concurring).
I agree that the evidence sustains the finding that the Commissioner reopened the case and that it remained open for consideration when the amended claim for refund was ultimately rejected; and therefore that the taxpayer’s claim is not barred by limitation.
I think it is unnecessary to consider or decide the second question dealt with in the opinion. The taxpayer’s true net income is undoubtedly an essential factor in the determination of his liability under an assessment made pursuant to section 210 of the 1917 act. Welch v. Obispo Oil Co., 301 U.S. 190, 196 , 57 S.Ct. 684 , 81 L.Ed. 1033 ; Heiner v. Diamond Alkali Co., 288 U.S. 502 , 53 S.Ct. 413 , 77 L.Ed. 921 . It is substantially shown that the Commissioner made no final determination of this essential factor. The matter remained in abeyance and there never has been a final determination by the Commissioner of true net income. This being so, there is no merit in the Commissioner’s second defense.