CONGRESSIONAL RECORD - HOUSE August 23

filed timely claims for refund of taxes

paid after March 1949. However, the

claimants did not file claims for refund

until November 15, 1955, which date was

more than 21/2 years after the district

court's decision. These claims for refund

were rejected because they were filed

after the expiration of the 4-year period

of limitations prescribed by law for filing

such claims.

It is true that, at the time the district

court reversed the Internal Revenue

S6rvice's interpretation of the statute,

refund of taxes paid for a large portion

of the period here involved was barred

by the statute of limitations. However,

Congress has determined it to be a sound

policy to include in the revenue system a

statute of limitations which, after a period of time, bars taxpayers from obtaining refunds of tax overpayments and

bars the Government from collecting additional taxes. Such a provision is essential to finality in tax administration.

The basic justification for the statute

of limitations is that, after the passing

of a reasonable period of time, witnesses

may have died, records may have been

destroyed or lost, and problems of proof

and administration of tax claims become

too burdensome and unfair for both taxpayers and the Government. The basic

purposes underlying the statute of limitations continue in force even in cases

where a taxpayer, after having paid a

tax, discovers that the interpretation of

the law has been changed by a judicial

decision or by a modification in regulations and rulings.

There are no special circumstances in

this case to justify singling out the

named taxpayers for special relief from

the statute of limitations. The bill,

therefore, would unfairly discriminate

against other taxpayers similarly situated and would create an undesirable

precedent.

On September 2, 1958:

SECTION 1870 OF TITLE 28, U. S. C.

H. R. 3368. I am withholding my approval from H. R. 3368, to amend section

1870 of title 28, United States Code, to

authorize the district courts to allow additional peremptory challenges in civil

cases to multiple plaintiffs as well as multiple defendants, for reasons wholly

unrelated to the original title and purpose of the bill.

Section 1 of the bill amends existing

law (28 U. S. C. 1870) so as to extend to

multiple plaintiffs in civil cases the same

three peremptory challenges which are available under the present statute to

multiple defendants. I favor this change

in the law and would approve the bill if

it were limited to this provision.

Section 2 of the bill amends the Declaration of Taking Act (46 Stat. 1421; 40

U. S. C. 258a). That act provides a procedure under which the Government

may acquire immediate possession of

property taken prior to a trial before a

Federal district court at which a final

determination as to Just compensation

for the property will be made. If, after

trial, the court determines that the funds

advanced by the Government are less

than the amount which the owner

should receive, the Government is required to pay the balance due plus 6 percent interest.

Section 2 of H. R. 3368 would modify

the procedure by providing that the

judge of a district could could, upon the

application of any interested party, determine that the amount of the Government's advance payment was determined fraudulently or in bad faith and

require the Government to pay an additional amount as fixed by the court prior

to trial. Prior to such additional payment, the Government would not be entitled to the income from the property.

These additional steps appear to be

unnecessary and unwarranted since, under the present statute, the rights of

property owners to receive just compensation as guaranteed by the fifth amendment to the Constitution when property

is taken for public use are fully protected. If, for any reason, the payments

advanced by the Government are less

than a court judgment of just compensation, the owner is still assured of fair

treatment because the Government is required to pay the additional amount plus

interest at 6 percent.

In the circumstances, and since neither

the responsible Congressional committees nor the affected executive agencies

had their normal opportunity to consider

this basic change in procedure, I believe

more thorough consideration of section 2

is warranted.

On September 2, 1958:

PETER JAMES O'BRIEN

H. R. 4073. I am withholding my approval from H. R. 4073, for the relief of

Peter James O'Brien.

This bill would pay to Peter James

O'Brien the sum of $10,000 as compensation for the death of his son, who was

killed in military service in 1947.

The son of the beneficiary of this bill

was being taken on an indoctrination

flight in a naval aircraft on the same

day on which he entered active duty as

a member of the Naval Reserve. As the

plane in which he was riding was waiting to take off, another Navy aircraft

coming in for a landing crashed into it,

injuring the son so seriously that he

died several days later.

The beneficiary has twice filed applications for death compensation with the

Veterans' Administration. Although the

death of his son was deemed to be

service-connected, the Veterans' Administration has denied award. in both instances because the father was unable

to establish dependency as required by

the governing statutes. It also appears

that, for the same reason, the beneficiary's claim for benefits under the Federal Employees' Compensation Act was

denied. He apparently has never filed

a claim for 6 months' death gratuity or

for regular monthly benefits under the

Social Security Act which also conditions

entitlement upon a showing of dependency.

A suit was Instituted on behalf of the

beneficiary to recover damages on account of the death of his son under the

provisions of the Federal Tort Claims

Act. Both the lower and appellate

courts held that recovery was barred on

the grounds that the death occurred as

an incident of military service. These

rulings were based on the decision in

Feres v. United States (340 U. S. 135,

1950). In that case, the United States

Supreme Court held that a claim for

damages based on the death of a serviceman occurring as an incident of his

service is not cognizable under the Federal Tort Claims Act.

The Federal Government has provided

a comprehensive and orderly system of

benefits for survivors of members of the

Armed Forces who die in service in line

of duty, including deaths due to negligence of fellow servicemen. In the present case the serviceman's father is eligible for various benefits upon a showing

of dependency.

To make the award proposed by the bill

would be discriminatory and establish

a most undesirable precedent with re- spect to other cases involving serviceconnected deaths. If the bill were approved, it would be difficult to deny similar awards to the survivors of other servicemen who did under a wide variety

of circumstances. To follow such a

course would, in my opinion, jeopardize

the entire structure of benefits for survivors of servicemen and veterans.

On September 2, 1958:

COOPER TIRE & RUBBER CO.

H. R. 7499. I am withholding my approval from H. R. 7499, for the relief of

the Cooper Tire & Rubber Co.

This bill would authorize and direct

the Secretary of the Treasury to pay to

the Cooper Tire & Rubber Co. of Findlay,

Ohio, the sum of $616,911.88 in full satisfaction of the claim of the corporation

against the United States arising out of

losses, due to increases in costs, incurred

in performing seven contracts with the

Department of the Army for the manufacture of rubber tires, tubes, and camelback.

The contractor previously made application for relief under title II of the

First War Powers Act. This application

was denied by the then Secretary of War,

along with the claims of two other rubber manufacturers based on the same

grounds.

The record indicates that the company

made a net profit of over $64,000 on the

35 Government contracts which were

awarded to it during 1950, 1951, and

1952, the years in question, despite the

fact that as to 7 of them it sustained

losses. From the Government's standpoint, it would be inequitable to grant

relief to the company with respect to

the 7 contracts on which it sustained

losses, without giving consideration to

the 28 on which It made profits. The

granting of relief in this case would also

be discriminatory against many other

contractors who sustained losses under

fixed price contracts during the early

part of the Korean conflict.

On September 2, 1958:

MR. AND MRS. ROBERT B. HALL

H. R. 8184. I am withholding my approval from H. R. 8184, for the relief of

Mr. and Mrs. Robert B. Hall.

The bill would direct the Secretary of

the Treasury to pay the sum of $1,300 to

Mr. and Mrs. Robert B. Hall, Los Angeles, Calif., in full settlement of their

claims against the United States for re19722