132 F. Supp. 741 | D.N.J. | 1955
This is an action commenced by a taxpayer against the United States and the District Director of Internal Revenue wherein plaintiff asks this court (a) to
There is no dispute regarding the facts; they are frankly and fully admitted in the complaint. On January 15, 1947, the plaintiff-taxpayer filed his 1946 estimated income tax return calling for an estimated refund of $1,551.52. He reported that a partnership in which he had an interest suffered a deficit, which he estimated as $4,500. On March 15, 1947, he filed his final amended return for 1946 and reported the partnership deficit as $5,472.39, thereby entitling him to a refund of $2,008. Subsequently, his bookkeeper received two refund cheeks: (1) $1,551.52, and (2) $2,008. Due to a clerical error, the latter check should have been for $456.48; the error by the Government was that in sending two separate refund checks to the taxpayer, one based on his estimated return and the other based on his final return, the refund already sent based on his estimated return was erroneously disregarded in sending him the refund based on his final return.
On August 24, 1950, the Commissioner of Internal Revenue sent to plaintiff a so-called thirty-day letter to the effect that “* * * the following adjustment of your tax liability appears to be warranted * * * 1946 Deficiency— Income Tax $2,550.87.”
Plaintiff does not dispute that he erroneously received $1,551.52; he contends that this court should enjoin the Government’s attempt to collect the money because it has followed an improper procedure in attempting to retrieve the erroneous refund resulting from the mathematical error. He asks this court to hold that when the Government erroneously sends to a taxpayer an admittedly excessive refund of money a court should enjoin the collection of it by the assessment procedure.
The issue is whether under the Internal Revenue Code of 1939
Sections 3653(a) and 272(a)(1) of the Internal Revenue Code of 1939
Plaintiff argues that he has a right under § 272(a)(1) of the Internal Revenue Code of 1939
While there is no pertinent express statutory provision granting assessment power to the Commissioner to collect mathematically erroneous refunds to taxpayers, § 272(f) of the 1939 Code
Plaintiff relies upon Maxwell v. Campbell,
I can see no reason why an amount admittedly erroneously refunded by the Commissioner should not be recovered by the administrative process of assessment and collection. I, therefore, hold that the taxpayer in this case does not have the right to maintain this action to enjoin the Commissioner from assessing and collecting the amount erroneously refunded as a result of a mathematical and clerical error.
There is no need to discuss nor decide the other issues raised by the Government regarding the sovereign immunity of the United States as a defendant and the indispensability of the Commissioner of Internal Revenue as a party.
An order may be submitted in conformity with the opinion herein expressed.
. The amount includes a portion of plaintiff's tax not involved in this case.
. Plus $347.20 interest.
. 26 U.S.C.A.
. 26 U.S.C.A. §§ 3653(a), 272(a) (1).
. See Hastings & Co., Inc., v. Smith, 3 Cir., 224 F.2d 875 (opinion filed July 12, 1955) where also the Commissioner was not attempting to assess or collect any deficiency, so that § 272(a) was inapplicable.
. 26 U.S.C.A. § 271(a).
. 26 U.S.C.A. § 272(a) (1).
. 26 U.S.C.A. § 271 et seq.
. 26 U.S.C.A. § 272(f).
. Name changed to The Tax Court'of the United States, 26 U.S.C.A. § 1100.
. 26 U.S.C.A. § 272(a) (1).
. 5 Cir., 205 F.2d 461, 463.