#### IRVING BANK-COLUMBIA TRUST CO., EXECUTOR OF WILL OF ARTEMUS WARD, DECEASED, v. THE UNITED STATES

[No. H-495.

Decided November 3, 1930]

*707
      *Mr. Laurence Graves*for the plaintiff. *Mr. EVmood W.*Kemp, *jr.,*was on the brief.

*Mr. Oha/rles R.*Pollard, with whom was *Mr. Charles F.*Kinoheloe, for the defendant. *Mr. J. S. Franklin*was on the brief.

*710Littleton, *Judge,*

delivered the opinion of the court:

Plaintiff seeks to recover additional interest of $26,653.21 ■on overpayments totaling $173,092.80 for the years 1915 to *7111918, inclusive, credited against original tax for 1919 as shown in Finding XI.

The credits were allowed and made under section 1324 of the revenue act of 1921. The Commissioner of Internal Revenue allowed and paid interest as shown in Finding XII. He computed and allowed interest to the due date of the unpaid original tax for 1919 (December 15, 1920) instead of to the date of the allowance of the claim for credit on the ground that after that date plaintiff was liable for interest on the 1919 tax.

Plaintiff claims that as to the amounts credited arising from overpayments of the original tax, interest should have been paid from the dates of payments to the date of allowance of the claim for credit, and, as to the amounts credited arising from overpayments of additional assessments, interest should have been allowed from six months after the claim for credit was filed to the date of the allowance of such claim.

The character of the overassessments and the amounts of overpayments credited were as follows:



Interest was allowed and paid as follows:



*712Interest was disallowed as follows:



The.plaintiff did not pay all of the original tax shown due and assessed on the returns for 1919, and claims for credit and abatement were filed. Under section 250 (e) of the revenue act of 1918 and section 250 (e) and (h) of the revenue act of 1921 plaintiff became liable for interest upon the unpaid 1919 tax. *Andrews Steel Company*v. *United States,*42 Fed. (2d) 573. *[Ante,*p. 235.] Plaintiff filed a claim for abatement for an amount of the 1919 original tax in excess of the amount of the overpayments for prior years credited against the 1919 tax, and also filed a claim for credit. It is immaterial whether the commissioner computed interest to the date of the allowance of the claim for credit, since, if he had, plaintiff would have been required to pay the same rate of interest upon the amount of the unpaid 1919 original tax, and such interest from the due date of such tax to the date of the credit would have exceeded the additional interest claimed by plaintiff by $6,850.07.

No interest was payable upon the amounts set forth in the last column of the last tabulation above for the reason that they were additional assessments and the *due*date (December 15, 1920) of the installment of the 1919 tax against which they were credited came within the six-months period following the filing of the claim for credit on June 15, 1920. No interest was paid by plaintiff to the defendant on $173,-092.80 of the original 1919 tax returned and assessed, and later satisfied by a credit of the overpayments for the years 1915 to 1918, inclusive, upon the allowance of the claim for credit from the due dates of the installments of the 1919 tax to the date of the allowance of the claim for credit.

Interest was allowed on the full amount of the overassessment for 1915 from the date the additional assessment was *713paid, October 16,1918, to the due date of the last installment of the unpaid 1919 tax, December 15, 1920, against which it was applied. On the amount of $16,891.89 of the 1916 overassessment, which was an additional assessment, interest was allowed from the date of the payment of the additional assessment, October 16, 1918, to December 15, 1920, the due date of the last installment of the 1919 tax against which it was credited; no interest was allowable on the credit of the remainder of the 1916 overassessment of $2,937.97 for the reason that this amount grew out of the overpayment of the original tax, which was not paid under protest, and claim for credit was filed June 15, 1920, and six months from that date was the due date of the 1919 tax. Interest was allowed on $65,782.66 of the overassessment for 1917 from February 8,1920, the date of the payment of the additional assessment, to December 15, 1920, the due date of the unpaid installment of the 1919 tax against which it was credited, but no interest was allowable on the remaining $65,221.89 of the overpayment because the due date of the 1919 tax against which it was credited came within the six-months period after the filing of the claim for credit.

No interest was allowable on the credit growing out of the 1918 overpayment for the reason that the due date of the 1919 tax against which it was credited also came within the six-months period following the filing of the claim for' credit on June 24, 1920. It therefore appears that all the-interest to which the plaintiff is entitled has been allowed and paid before the filing of the petition in this case, and it follows that no recovery can be had.

The petition must therefore be dismissed, and it is so ordered.

Williams, *Judge;*Green, *Judge;*and Booth, *Chief*Justice, concur.

Whaley, Judge, did not hear this case and took no part in the decision thereof.