#### DAVID W. MULVANE AND THE PRUDENTIAL TRUST CO., OF TOPEKA, KANSAS, AS EXECUTORS OF THE ESTATE OF J. R. MULVANE, DECEASED, v. THE UNITED STATES

[No. D-812.

Decided November 9, 1925]

*On the Proofs*

*Taxes, Federal estate; revenue acts of 1916 and 1918.*— Tbe transfer of tbe estate of a decedent wbo died May 9, 1918, is subject to tbe rates provided in tbe revenue act of 1916, -39 Stat. 756, as amended by the acts of March 3, 1917, 39 Stat. 1000, and October 3, 1917, 40 Stat. 300, the tax so calculated to be assessed and collected under tbe administrative provisions of tbe act of 1918, 40 Stat. 1057, approved February 24, 1919.

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      *The Reporter’s*statement of the case:

*Mr. George Elliott*for the plaintiff. *Messrs. Edward E. Gann*and *D. R. Hite*were on the briefs.

*Mr. Alexander H.*MoCormick, with whom was *Mr. Assistant Attorney General Herman J.*Galloway, for the defendant.

The court made special findings of fact, as follows:

I. The plaintiff, David W. Mulvane, is now, and at all times hereinafter referred to was a citizen of the United States and a resident of the City of Topeka, State of Kansas. The plaintiff, The Prudential Trust Company, is now, and at all times hereinafter referred to was, a corporation organized and existing under the laws of the State of Kansas, with its principal office in the City of Topeka.

II. J. R. Mulvane died a citizen of the United States and a resident of Topeka, Kans., on May 9, 1918, leaving a last will and testament by the terms of which the plaintiff, David W. Mulvane, and one John David Mulvane were nominated executors.

III. Said last will and testament of J. R. Mulvane was duly filed and admitted to probate in and by the Probate Court of the County of Shawnee, State of Kansas, on May 13, 1918, and on the same day letters testamentary were issued by said court to the plaintiff, David W. Mulvane, and to John David Mulvane. John David Mulvane died on October 23, 1918, and on October 26, 1918, by due proceedings in the said probate court, pursuant to said last will and testament of J. R. Mulvane, letters testamentary were duly issued out of said court, to the plaintiff, The Prudential Trust Company. Ever since, the plaintiffs herein have been, and now are, the duly appointed, qualified, and acting executors of the said estate.

IY. As said executors, plaintiffs made a return for estate taxes to the collector of internal revenue of the United States for the district of Kansas, and filed same in the office of said collector on October 21, 1919.

Y. The net estate as shown by the original return as filed October 21, 1919, is $1,090,327.12, after restoring to net estate the sum of $.1,504.26 deducted by plaintiffs from gross *167estate on the return because of inheritance taxes due and accrued to the State of Kansas on said estate.

YI. Said collector and the Commissioner of Internal Revenue determined that the tax imposed upon the transfer of the net estate of said J. R. Mulvane, deceased, should be calculated at the rates provided by the revenue act of September 8, 1916, as amended by the act of March 3, 1917, and the war revenue act of 1917 (act of October 3, 1917). The tax so calculated was assessed and collected under the administrative provisions of the revenue act of 1918. On October 21, 1919, plaintiffs paid to said collector, under ivritten protest, the sum of $92,658.74; and on October 25, 1919, plaintiffs paid to said collector, under written protest, the further sum of $180.51, on the amount due and accrued to the State of Kansas as an inheritance tax on said estate, as mentioned above, making a total paid on the original return as filed October 21, 1919, of $92,839.25, as and for a Federal estate tax upon the transfer of said net' estate.

VII. Thereafter the Commissioner of Internal Revenue determined that the value of said net estate was $1,207,184.90 and not $1,090,327.12, as shown by the return originally filed, and assessed under the administrative provisions of the revenue act of 1918 an additional tax, at the rates provided in the revenue act of 1916 as amended by the act of March 3, 1917, and the war revenue act of 1917 (act of October 3, 1917), amounting to $14,022.94, making a total tax of $106,862.19 as and for a Federal estate tax upon the transfer of said net estate. The additional tax was paid by plaintiffs under protest in May, June, and December, 1923.

VIII. Prior to the making of the additional assessment by the Commissioner of Internal Revenue, and on June 21, 1921, plaintiffs duly filed with the collector of internal revenue of the United States for the district of Kansas and with the Commissioner of Internal Revenue of the United States, a claim for refund, setting out the details of said claim, based on the $92,839.25 tax paid on the original return filed October 21, 1919; on November 29, 1921, the Commissioner of Internal Revenue rejected and refused this claim for refund, and declined and still declines to return or *168authorize to be repaid to plaintiffs any part of said amount collected.

IX. Thereafter, on or about October 15, 1924, plaintiff filed with the collector of internal revenue of the United States for the district of Kansas and with the Commissioner of Internal Revenue of the United States, a second claim for refund, setting out the details thereof and based on the additional assessment paid by plaintiff in May, June, and December, 1923. This claim has not yet been acted upon by the Commissioner of Internal Revenue. Without such action by the commissioner within six months of filing, that is, by April 15, 1925, suit on same can not be instituted. The present suit was filed October 20, 1924, to prevent the statute of limitations from running thereon, on October 21, 1924.

X. The total tax imposed upon the transfer of decedent’s net estate, including the additional assessment of $14,022.94 heretofore referred to, if computed at the rates provided by the revenue act of 1918 (act of February 24, 1919), instead of at the rates provided by the revenue act of 1916, as amended, is $12,218.49. The difference between the amount calculated at the rates provided in the revenue act of 1916, as amended by the act of March 3, 1917, and the war revenue act of 1917 (act of October 3, 1917), and assessed and collected under the administrative provisions of the revenue act of 1918, $106,862.19, and the amount which would have been collectible if computed at the rates provided by the 1918 act, $72,218.49, is $34,643.70.

XI. As regards the present suit, which is based on the amount originally paid by plaintiffs on the original return filed October 21, 1919, the tax imposed upon the transfer of decedent’s net estate if computed at the rates provided by the revenue act of 1918 (act of February 24, 1919), instead of at the rates provided by the revenue act of 1916, as amended, is $60,532.71. The difference between the amount originally collected on the return as originally filed, $92,839.25, and the amount which would have been collectible thereon if computed at the rates provided by the 1918 act, $60,532.71, is $32,306.54, which is the amount claimed in *169this suit. There are no credits or offsets against the amount claimed.

The ■ court decided that plaintiffs were not entitled to recover.

Booth, Judge,

delivered the opinion of the court:

This case is submitted upon stipulated facts. A case substantially similar in all respects was before the Circuit Court of Appeals for the Eighth Circuit, *Page*v. Skinner, 298 Fed. 731, and decided adversely to plaintiffs’ contention herein. We are in effect asked to sustain a contrary ruling. This we are not disposed to do. All the essential points advanced in behalf of plaintiffs here were vigorously pressed before the Circuit Court of Appeals, and with the opinion of that court we are in accord. We need not repeat the long and involved arguments dismissing plaintiff’s petition. The petition is dismissed. It is so ordered.

Graham, *Judge;*Hay, *Judge;*Downey, *Judge;*and Campbell, *Chief*Justice, concur.