Opinion
No. L-353.
May 29, 1933.
G. Mason Owlett, of Wellsboro, Pa. (Crichton Owlett, of Wellsboro, Pa., on the brief), for plaintiff.
P.M. Cox and W.W. Scott, both of Washington, D.C., for the United States.
Before GREEN, LITTLETON, WILLIAMS, and WHALEY, Judges.
Suit by the Helvetia Milk Condensing Company, Incorporated, against the United States.
Judgment for the plaintiff.
In this suit plaintiff seeks to recover overpayments of taxes duly allowed by the Commissioner of Internal Revenue in the total amount of $8,608.97, together with interest.
Payments of the refunds allowed were withheld by the Comptroller General and applied against an alleged indebtedness of plaintiff to the United States for alleged overpayments to plaintiff as excess profits in connection with the sale of evaporated and condensed milk by plaintiff to the United States.
Special Findings of Fact.
1. November 27, 1926, the United States District Court for the Eastern District of Missouri rendered judgment in favor of plaintiff for $4,211.71 for documentary stamp tax illegally collected, which judgment was duly presented for payment, but was withheld by the Comptroller General June 13, 1927, for the reason hereinafter mentioned.2. The defendant erroneously and illegally assessed and collected from plaintiff an income tax for 1922 of $3,319.64. Thereafter the Commissioner allowed an overpayment of this amount, and, on September 15, 1927, issued to plaintiff a certificate of overassessment therefor, together with interest of $576.34, and certified the same to the Comptroller General for payment. The Comptroller General withheld payment September 23, 1927, for the reason hereinafter mentioned.
3. July 15, 1928, the Commissioner made an allowance in favor of plaintiff for $501.28, being a refund of interest due plaintiff on overpayments of income tax for the calendar year 1924 and the period March 31 to December 31, 1925. The Commissioner issued certificates of overassessments to plaintiff for the amount; payment thereof was withheld by the Comptroller General July 24, 1928.
4. The aforementioned amounts allowed by the judgment of the District Court and by the Commissioner of Internal Revenue were withheld by the Comptroller General and applied by him against an alleged indebtedness of plaintiff to the United States arising from an alleged overpayment to plaintiff of excess profits for evaporated and condensed milk sold and delivered by plaintiff to the United States under contract. The identical subject-matter of the alleged indebtedness to the United States by plaintiff for excess payments under said milk contracts was set up by the United States as a counterclaim in the case of Helvetia Milk Condensing Co. v. United States, which counterclaim was decided adversely to the defendant by this court March 7, 1932, 56 F.2d 676, 74 Ct. Cl. 142. There were no overpayments by the defendant to plaintiff in connection with the milk contracts, and plaintiff was not and is not indebted to the United States on account of payments made for evaporated and condensed milk delivered to the United States.
The amount of $8,608.97 sought to be recovered in this case with interest represents overpayments of taxes and interest duly allowed in part by a judgment of the District Court for the Eastern District of Missouri and in part by the Commissioner of Internal Revenue as to which there is no controversy. These allowed overpayments were withheld by the Comptroller General and applied against an alleged indebtedness of plaintiff to the United States arising from an alleged overpayment to plaintiff of excess profits for evaporated and condensed milk sold and delivered by plaintiff to the government under contract.
In a case brought by this company in this court it was decided in 56 F.2d 676, 74 Ct. Cl. 142, that the plaintiff was not indebted to the government for any amount on account of payments made for condensed milk, and the defendant's counterclaim was denied. This case was instituted subsequent to that decision, and no counterclaim is imposed herein. Plaintiff is therefore entitled to judgment for $8,608.97, with interest at 6 per cent. per annum under the Act of March 3, 1875, as amended by section 13 of the Treasury-Post Office Appropriation Act approved March 3, 1933 (31 USCA § 227), on $4,211.71, the amount of the judgment of the District Court, from June 13, 1927, until paid, on $3,895.98 from September 23, 1927, and on $501.28 from July 24, 1928, to March 3, 1933, the date on which the act of 1875 was amended by the act of March 3, 1933. See Ernest C. Whitbeck, Receiver of L-W-F Engineering Co., Inc., v. United States, No. F-322, decided by this court April 10, 1933. It is so ordered.
BOOTH, Chief Justice, did not hear this case on account of illness, and took no part in its decision.