8 F. Supp. 703 | Ct. Cl. | 1934
The facts of record are insufficient to warrant the conclusion that plaintiff was affiliated with all or any of the five corporations under the rule announced in Handy & Harman v. Burnet, 284 U. S. 136, 52 S. Ct. 51, 76 L. Ed. 207, and Pokorny Estate v. United States, 59 F.(2d) 236, 75 Ct. Cl. 459. An examination of the stockholdings, which we have deemed unnecessary to set forth in detail in the findings but which fully appear in the record, shows that the same interests did not hold substantially all the stock of each of the corporations claimed to have been affiliated with the plaintiff and that the holdings were not the same in the several corporations as required by the law and Treasury Regulations, art. 643, Regs. 45. See, also, Peytona Lumber Co. v. Commissioner (C. C. A.) 55 F.(2d) 27, 85 A. L. R. 148; Wadhams & Co. v. United States, 67 Ct. Cl. 235; Madera Yosemite Big Tree Auto Co. & Yosemite Stage & Turnpike Co. v. United States, 49 F.(2d) 672, 72 Ct. Cl. 171, and United States v. Cleveland, P. & E. R. Co., Inc. (C. C. A.) 42 F.(2d) 413.
Plaintiff further contends that the determination of the Commissioner for 1920; in which he first reached the conclusion that it
With respect to 1919, in which plaintiff seeks to recover $7,184.04 on the ground of affiliation, it appears that the Commissioner did not determine or compute the net income, invested capital, or the tax of the plaintiff or any of the other alleged affiliated corporations upon a consolidated or affiliated basis. In view of our conclusion that the corporations were not affiliated either for 1919 or 1920, no recovery can be had of the amount claimed for 1919.
Plaintiff finally contends that there was an account stated for $5,239.70, overassessment for 1920, shown in the certificate of overassessment delivered to it. This contention may be answered by pointing out that the Commissioner never allowed the overassessment indicated in his letter of November 24, 1928, and set forth in the certificate of overassessment, which certificate showed an allowance of only $187.13. On the contrary, both his letter and the certificate of over assessment showed the amount of $5,239.70 as not being allowable. There was therefore no agreement that this amount was due, and in the circumstances of this ease there was no promise, expressed or implied, to pay.
The petition must be dismissed, and it is so ordered.