#### GIRARD TRUST COMPANY, A CORPORATION, GEORGE STEVENSON, WILLIAM R. VERNER AND ROBERT GLENDINNING, IN THEIR CAPACITY AS TRUSTEES OF THE ESTATE OF ALFRED F. MOORE, DECEASED, v. THE UNITED STATES.1

[No. C-972.

Decided May 19, 1924]

*On the Proofs*

*Excess profits tax; refund; interest.*— Where the principal sums and interest as allowed by the Commissioner of Internal Revenue have been paid to and accepted by plaintiffs, they can not maintain an action in this court for additional interest.

*The Reporters*statement of the case:

*Mr. James Craig Peacock*‘for the plaintiffs.

*Mr. Chester A.*Gwinn, with whom was *Mr. Assistant Attorney General Ro-bert II.*Lovett, for the defendant. *Messrs. Rosooe R. Koch*and *Nelson T. Hartson*were on the brief.

The following are the.fads of the case as found by the court:

I. The claimants, Girard Trust Company, a corporation duly organized under the laws of the State of Pennsylvania, George Stevenson, William R. Verner, and Robert Glen-dinning, brought this action in their capacity as trustees of tire estate of Alfred F. Moore, deceased.

II. The supposed excess profits tax upon the estate ox Alfred F. Moore, deceased, for 1917, as originally determined and assessed early in 1918, amounted to $108,140.15, which assessment was paid and satisfied by the plaintiffs on March 21, 1918, by the payment in advance to the collector of internal revenue at Philadelphia of $107,372,36, being the said $108,140.15 less the credit of $767.79 allowed under section 1009 of the revenue act of 1917, 40 St at. 326, for payment in advance of the time fixed by law for such payment, viz. June 15, 1918.

*728III. The plaintiffs subsequently were advised that being the trustees of a trust estate they were not subject to excess-profits tax under the revenue act of 1917, and on August 2, 1921, filed their claim for the refund of the entire tax of $108,140.15. Their claim for refund was allowed for $107,372.36 by the Commissioner of Internal Revenue. Schedule Form 7777, Serial No. 3781, including this item, was on December 9, 1922, approved by the Commissioner of Internal Revenue for transmission to the proper accounting officer for credit and refund. On February 7, 1923, the plaintiffs received by mail a certificate of over-assessment, dated February 6, 1923, for $107,372.36, with which was transmitted a check for $112,864.53. The certificate stated that the amount refunded was $107,372.36 and that there was included in the check interest on the refund from the date six months after filing of the claim to the date of allowance, amounting to $5,492.17. The records of the Bureau of Internal Revenue show that interest actually was computed from February 2, 1922, to December 9, 1922.

IV. The proposed income tax upon the estate of Alfred F. Moore, deceased, for 1920 as originally returned and assessed early in 1921, amounted to $196,202.61. On March 15, 1921, and on June 15, 1921, respectively, the first and second quarterly installments of such tax, each amounting to $49,050.66, were paid to the collector of internal revenue at Philadelphia.

Theie was attached to the original return of claimants the following protest:

“ Note. — -Profit was made during the year 1920 upon sales of capital assets as set forth in block C above. This amount of $349,200.85 is included in the total net income and under regulations is returned for tax on Form 1040.. As the taxpayer is advised that such sum is not taxable income, under the decision of *Brewster*v. *Walsh*— District Court for District of Connecticut made December 16, 1920 — -the report of the amount of such profit is made and tax paid thereon only under protest, and only in compliance with the requirement of the foregoing form and the instructions thereon.

“ Trustees estate of Alfred F. Moore, dec’d.

“ George SteveNSON,

“ *Trustee.*

“March 11, 1921.”

*729and both tlie March 15 and June 15 installments were paid thereunder.

The June 15 installment was also paid under the following additional notice which was transmitted to the collector with the check with which it was paid:

“ In view of the joint investigation by accountants of both Government and trustees now in progress, with the agreed object of correcting certain figures, especially those relating to depreciation, believed to have been erroneously increased, as to the most important item and ignored as to another item, in the 1920 return of said trustees covering the sale of the three capital assets in that return set forth, estimating the total of said profits and the tax payable thereon out of the trust estate.

“ Inasmuch as a second quarterly installment of $49,050.60 based upon said estimate, is now (6-15-21) due, you are hereby notified that the accompanying payment thereof is made without prejudice to the right of said trust estate to be hereafter relieved from or reimbursed for the payment of' any tax upon the profits so returned in excess of the total tax,-resulting from such final adjustment thereof as may be determined, either by agreement, or by the courts.”

Y. The plaintiffs were advised that they were probably not subject to any income tax, or that if subject to a tax, its true amount was much smaller than had been assessed, and on August 2,1921, filed their claim for the refund of the two quarterly installments aggregating $98,102.82 already paid as above set forth and their claim for the abatement of the two quarterly installments aggregating $98,101.29 not yet paid. Their claim for refund was allowed in large part and their claim for abatement was allowed in its entirety by the Commissioner of Internal Revenue. Schedule Form 7777 Serial No. 3781 including this item was on December 9, 1922, approved by the Commissioner of Internal Revenue for transmission to the proper accounting officer for credit and refund. On February 20, 1923, the plaintiffs received by mail a certificate of over assessment dated February 10, 1923, for $182,538.72.

The certificate stated that since $196,202.61 wTas assessed, whereas, $13,663.89 was the correct tax liability, there had *730been an overassessment of $182,538.72, and that the amount of this overassessment had been applied as follows:

Amount abated_$98,101. 29

Amount credited____ 21. 41

Amount refunded___ S4, 416. 02

With the certificate was transmitted a check for $84,416.02, the exact amount of the refund without interest.

YI. Since the filing of the petition in this case plaintiffs have received from J. G. Bright, Deputy Commissioner of Internal Revenue, a communication dated October 5, 1923, transmitting check for $4,318.97 stated to be interest on the refund of $84,416.02 and on the credit of $21:41 from six months after filing to the date of allowance of the claim. The records of the Bureau of Internal Revenue show that interest actually was computed from February 2, 1922, to December 9,1922.

VII. If the court concludes as a matter of law that under section 1324 (a) of the revenue act of 1921 interest shall be paid to the date when the refund is actually paid, then '

*(a)*Interest amounting to $1,031.06 should also have been paid on $107,372.36 from December 9,1922, until February 6, 1923, and

(5) Interest amounting to $997.05 should also have been paid on $84,437.43 from December 9, 1922, to February 20, 1923, and judgment for plaintiffs for $2,028.11 should therefore be entered on this account.

VIII. If the court concludes as a matter of law that the installments of the 1920 tax paid on March 15, 1921, and June 15,1921, were both paid under a specific protest setting forth in detail the basis of and reasons for such protest within the meaning of section 1324 (a) (1) of the the revenue act of 1921, and that such interest should be computed on $45,634.68 from March 15, 1921, to February 2, 1922, and on $38,802.75 from June 15, 1921, to February 2, 1922, then judgment for plaintiffs for $3,889.67 should be entered on this account.

IX. If the court concludes as a matter of law that only the installment of 1920 tax which was paid on June 15,1921, was paid under such a specific protest within the meaning of *731section 1324 (a) (1), and that sucli interest should be computed on $38,802.75 from June 15, 1921, to February 2, 1922, then judgment for $1,472.91 for plaintiffs should be entered on this account.

X. If the court concludes as a matter of law that the installments of the 1920 tax were both paid under such a specific protest within the meaning of section 1324 (a) (i), but that such interest should be computed on $35,386.77 from March 15, 1921, to February 2, 1922, and on $49,050.66 from June 15,1921, to February 2,1922, then judgment for plaintiffs for $3,735.95 should be entered on this account.

XI. If the court concludes as a matter of law that only the installment of 1920 tax which was paid on June 15,1921, was paid under such a specific protest within the meaning of section 1324 (a) (1), but that such interest should be computed on $49,050.66 from June 15, 1921, to February 2, 1922, then judgment for plaintiffs for $1,861.91 should be entered on this account.

XII. Exhibit A (Treasury Department, United States Internal Revenue Service, Form 7777, Schedule No. IT-A-3781) is a true excerpt from the schedule signed by the Commissioner of Internal Revenue on December 9. 1922, referred to in findings III and V.

XIII. Exhibit B (Treasury Department, United States Internal Revenue Service, Form 7777A, Schedule No. IT-R-3781) is a true excerpt from schedule signed by the Commissioner of Internal Revenue on January 16, 1923, containing *inter*alia, the items of $107,372.36 principal and $5,492.17 interest, making a total of $112,864.53, referred to in findings II and III.

XVI. Exhibit C (Treasury Department, United States Internal Revenue Service, Form 7777A, Schedule No. IT-R-3781) is a true excerpt from a schedule signed by the Commissioner of Internal Revenue on January 16, 1923, containing, *inter*alia, the item of $84,416.02, referred to in Findings V and VI.

Said Exhibits A, B, and C mentioned in Findings XII, XIII, and XIV, being photostatic copies, are ma.de a part of these findings by reference thereto. .

1

 Appealed.

*732MEMORANDUM BY THE COURT

Three of the items are for interest, the principal sums having been paid with some interest. The plaintiffs claim they are entitled to more interest. The principal sums and interests as allowed by the" commissioner haying been paid to and accepted by the plaintiffs, they can not maintain in this court an action against the Government for additional interest. See *Stewart*v. Barnes, 153 U. S. 456, 464.

The petition is dismissed.