#### HARVEY COAL CORPORATION v. THE UNITED STATES

[Nos. 42602 and 43388.

Decided December 7, 1942]

*530Whitaker, Judge,

delivered the opinion of the court:

On December 2, 1940. the court filed special findings of fact with an opinion holding that plaintiff in the above entitled cases was entitled to recover, but suspended the entry of judgment until the filing of a stipulation by the parties, or, in the absence thereof, until the incoming of a report by a commissioner of the court as to the correct amount due plaintiff (92 C. Cls. 186). No stipulation having been filed, the court, on its own motion, on June 24, 1942, referred the cases to a commissioner of the court, who on October 3, 1942, submitted his report showing certain amounts due plaintiff computed in accordance with the court’s opinion. Exceptions were filed to that report by the plaintiff and by the defendant on the following grounds, among others: (1) because the commissioner found, in accordance with the court’s opinion, that the plaintiff was not entitled to recover any part of the original tax paid by plaintiff for the year 1929 because the same was barred by the statute of limitations; (2) because the commissioner found that the plaintiff was entitled to depletion computed upon the basis of a value to the lessee of $250,000 for the coal in place.

The statement in the court’s opinion that the original tax paid by plaintiff for 1929 was barred by the statute of limitations was an inadvertence. Findings 14 and 19 show that the original tax was paid on March 15, 1930, March 20, 1930, 'June 14, 1930, September 15, 1930, and December 15, 1930, and that the claim for refund was filed on February 8, 1932. Therefore, it was filed within two years from the dates of the pajcment of the original tax, and recovery of the original tax, therefore, is not barred by the statute of limitations. (45 Stat. *791,*861; U. S. C. A. Int. Kev. Acts, page 436.)

It is plain from a reading of the opinion that in stating that the value of the coal in place was $250,000 the court had *531reference to the value to the plaintiff, and a reading of the testimony shows that the value testified to by the witnesses was the value to the plaintiff of the coal in place; Finding 7 of the court’s special findings of fact, therefore, is supplemented by inserting the words “to the plaintiff” between the word “value” and the word “of” in the last sentence of that finding.

Judgment will be entered in accordance with the report of the commissioner as supplemented by this memorandum. It is so ordered.

LhtletoN, *Judge;*and Whaley, *Chief Justice,*concur.

In accordance with the above memorandum opinion, judgment was entered for the plaintiff in the sum of $6,851.48, with interest as provided by law, as follows:

*In No. 1$602:*

$941.12 for 1928, with interest from April 21, 193(1;

$1,884.79 for 1929, with interest on $98.85 from May 19, 1933, with interest on $287.69 from April 14, 1931, and with interest on $1,498.25 from December 15, 1930; and in addition, two overpayments of interest for 1929, $18.45, with interest from April 14, 1931, and $30.74, with interest from May 19, 1933.

$2,497.28 for 1930, with interest on $855.35 from June 4, 1932, and with interest on $1,641.93 from December 14,1931; and in addition, an overpayment of interest for 1930, in the amount of $40.68, with interest from June 4, 1932.

*In No. 43388:*

$1,438.42 for 1931, with interest on $505.77 from February 23,1934, with interest on $209 from December 14, 1932, with interest on $233 from September 15, 1932, with interest on $233 from June 15, 1932, and with interest on $257.65 from March 11, 1932.