Rogan

Two California corporations — appellee and Gennett Realty Company, hereafter called Gennett — were merged in 1934 under and pursuant to § 361 of the California Civil Code. 1 Thereupon Gennett’s separate existence ceased, and appellee, the surviv *672 ing corporation, succeeded to all of Gen-nett’s rights and property and became subject to all of Gennett’s debts and liabilities. 2 In appellee’s income and excess-profits tax return for 1934, no gain or loss was shown to have resulted from the merger. The Commissioner of Internal Revenue determined that, upon receipt of Gennett’s property as a result of the merger, appellee realized gain, and that such gain was recognizable for income and excess-profits tax purposes. He accordingly determined and assessed a deficiency in respect of appellee’s income and excess-profits taxes for 1934. Appellee paid the assessed amount ($73,-557.08) on March 3, 1938, to Nat Rogan, the then Collector of Internal Revenue for the Sixth Collection District of California, and, its claim for refund having been denied, brought an action against Rogan to recover said amount as having been illegally assessed and collected. Rogan answered, jury trial was waived,…