delivered the opinion of the Court.
Uрon the footing of an account stated the petitioner sues the Government for taxes overpaid.
Income and profits tax returns for the fiscal year ending July 31, 1917, were filed by the taxpayer in September, 1917. The tax shown by these returns as well as by amended returns for the same year was paid in full..
Income and profits tax returns for the fiscal year ending July 31, 1918, were filed in October, 1918, and again the tax was promptly paid.
Following the practice of the Bureau, the Commissioner proceeded to audit the returns to the end that the assessments might be increased or reduced according to the facts.
In February, 1921, the taxpayer signed and. filed a waiver of any statutory period of limitation as to the assessment and collection of the tax for the calendar year
In February, 1923, the taxpayer signed a second waiver applicable to the fiscal years 1917 and .1918, and extending the period for collection until March 1, 1925. This waiver was not signed by the Commissioner within the term of its duration, though it was signed, years after-wards, on April 7, 1930. However, in June, 1923, while both waivers were on file, the Commissioner made an additional assеssment for the fiscal year ending July'31, 1917, and on the attached ássessment fist wrote the word “ waiver ” opposite the item affecting the petitioner. The additional assessment for 1917 was reduced by a credit of an overassessment for 1916, and when so reduced amounted to $20,757.14. Payment of this amount was demanded by the Collector on August 3, 1923.
On August 9, 1923, the petitioner filed a claim for refund and credit of income taxes alleged to have been overpaid for the fiscal years 1918, 1919, 1920, and 1921, amounting in the aggregate to $35,727.10, and asked that the unpaid balance for 1917 be set-off against the claim for overpayment and that the remainder be refunded. At that time it was the practice of the Collector’s office to treat such a claim as a stay of collection of unpaid taxes against which the credit was asked, until the Commissioner had considered and' adjusted the claim.
On March 1, 1924, the Commissioner approved a schedule of overassessments which\included an overassessment in favor of the petitioner for the fiscal year ending July
For nearly six years the transaction was allowed to stand unopened and unchallenged. In April, 1930, the petitioner leаrned'through an attorney that the second waiver, had not been signed by the Commissioner until after it had expired. With this knowledge it filed with the Commissioner a claim for refund of the overpaid tax for 1918 ($14,928.07) which had been collected through application as a credit upon the tax for the year before. The basis for the claim was this, that at the time of the credit the first waiver had expired, that the second waiver was ineffective because not signed by the Commissioner, that collection by credit after the term of limitation was as much prohibited as collection at such a time by suit
1. In auditing the tax for 1918 and crediting the over-assessment for that year upon the tax for the year before, the Commissioner acted at the request of the petitioner, which was valid till revoked.
For the decision of. this case we do not need to rule whether a “ waiver ” by a taxpayer сonsenting to the enlargement of the time for assessment or collection is ineffective unless:approved by the Commissioner in writing.
*
There was here more than a waiver, an abandonment of a privilege to insist upon the fulfilment of a condition
(Stange
v.
United States,
On' August 3, 1923, the Collector made demand upon the petitioner for the payment of $20,757.14, the tax balance then due for the year 1917. There is no dispute that the demand was timely, and that collection would have been enforced unless the taxpayer had done something to postpone the hour of payment. Waivers were then on file, one of them signed by the Commissiоner, the other unsigned, but the petitioner did not rest upon these, nor would these without more have availed to avert the threatened levy. On August 9, 1923, the petitioner filed with the Commissioner a request to withhold the
Now, the time for assessment and collection of the 1921 .tax did not expire till 1925, and this without the aid of any waiver or extension. In such circumstances, request by the taxpayer that the Commissioner withhold collection for 1917 until there had been an audit of the tax for 1921 was at least еquivaleiit to a request that he delay until the assessment for 1921 was due under the statute.' But before that time .arrived, i. e., before 1925, the Commissioner had acted. On March 1, 1924, he had completed the reaudit, and had discovered an overassessment for one of the years covered by the petitioner’s request. Within a reasonable time thereafter (June 12, 1924) he had received from the Collector a .report that $20,757.14 was still unpaid upon the tax for 1917. Promptly thereafter (June 28, 1924), he had complied with the petitioner’s instructions by offsetting the overpayment for the one year in reduction of the balance owing for the other. The whole process had been completed within the time fixed by implication in the petitioner’s request, within the time when аssessment was due for the last of" the group of years (1918 to 1921) to be covered by the audit.
The petitioner makes the point that by the Revenue Act of 1928 (c. 852, 45 Stdt. 791, 875, § 609), a credit against a liability in respect of any taxable year shall be “ void ” if it has been made against á liability barred by limitation. The aim of that provision, as we view it, was to invalidate such a credit if made by the Commissioner оf his own motion without the taxpayer’s approval or with an approval falling short óf inducement or request. Cf.
Stange
v.
United States, supra;
Revenue Act of 1928, § 506 (b) (c), c. 852, 45 Stat. 791, 870, 871. If nothing
The applicable principle is fundamental and unquestioned. “ He who prevents a thing from being done may not avail himself of the non-performance which he has himself occasioned, for the law sаys to him in effect ‘ this is your own act, and therefore you are not damnified.’ ”
Dolan
v.
Rodgers,
2. If we assume in favor of the petitioner that, the credit is a nullity in the absence of a written waiver, approved by the Commissioner,, the record supports the inference that at the time of the set-off' such apрroval had been given.
The statute provides that no suit or proceeding shall be begurf for the collection of the tax after the expiration of five years succeeding the filing of the return
“
unless both the Commissioner and the taxpayer consent in writing to a later determination, assessment, and collection.” Revenue Act of 1921; c. 136, 42 Stat. 227, 265, § 250 (d). In this case, consent by the taxpayer in due form, is found and indeed conceded. The only question is whether there was consent by the Commissioner. But the statute does not say that the evidence of consent shall be embodied in a single paper. Cf.
Eclipse Lawn Mower Co.
v.
United States,
The burden was on the petitioner, seeking a refund of its fax, to prove its allegation'that the overassessment for 1918 had been illegally credited upon the tax for 1917.
Now, the petitioner has failed to show that the Commissioner did not approve in writing. On the contrary the evidence is persuasive that he did. A certificate of an additional assessment for the fiscal year ending July 31, 1917, was signed, as we have seen, on June 26, 1923; and on the assessment list attached thereto, opposite the entry of the assessment against the petitioner, the following appears: “7/31/17 Fisc. 1753361. O.L. 4/17/23; waiver.” The Commissioner did not sign his name below the memorandum, but the memorandum was attached to a certificate which the Commissioner did sign, and his name', subscribed to the certificate authenticates also the documents attached to it, if we assume in favor of the petitioner that signing is essential.. The Court of Claims was of the oрinion that the word “ waiver ” on this list had relation to
The inference, therefore, is legitimate that the second of the two waivers is the one that the Commissioner had' in view -when he. wrote this memorandum indicative of assent.. At the very least the effect of the entry is to leave the purpose of the writer doubtful. Choice between two doubts should be made in such a way as to favor the presumption of official regularity.
3. The petitioner has failed to make out the existence of an .account stated for its benefit, and its claim, even if otherwise valid, is barred by limitation.
Payment of the tax for the. fiscal year ending July 31, 1918, was made by the petitioner, partly.in 1918, and
A recent judgment of this court recalls the essentials of an ‘ hccount stated as they were long ago defined.
Daube
v.
United States, supra.
A balance must have been struck in such circumstances as to import a promise of payment on the one side and acceptance on the other. But plainly no such promise is a just or reasonable inference from the certificate of overassessment delivered to this taxpayer, if the certificate is interpreted in the setting of the occasion.. The taxpayer knew that the Commissioner had been requested, after determining the over-assessment, to set it off against the tax for an earlier.year. The taxpayer knew also that the set-off or credit would not appear on the face of the certificate of overassessment, but would require reference to another and later document, the schedule of refunds and credits. The diverse functions of these documents were pointed out by this court' in
United States
v.
Swift & Co.,
The events that followed cоnfirm this interpretation of the effect of the transaction. Upon a computation of the credits the .final balance was ascertained to be in favor of. the Government. The balance thereby fixed was reported to the taxpayer. After the' schedule of refunds and credits had been signed by the Commissioner, the Collector transmitted to the taxpayer а new statement of account by which it was' clearly made to appear that the over-assessment had been credited Upon the tax for 1917, and that after such credit there was still owing from the taxpayer a balance of $5,829.07, which, together with the accrued interest, was thereupon collected. Then for the first time was there a final ascertainment of the balance upon consideration of both sides of the account, the debits and the credits. The taxpayer did not object to the account as submitted in its final form. Far from objecting, it paid the resulting balance, and by this act as well as by silence conceded the indebtedness. Indeed, there was more than an account stated; by force of voluntary payment there was also an account settled.
Lockwood
v.
Thorne,
The judgment is
Affirmed.
Notes
See:
Commissioner
v.
U.S. Refractories Cory.,
64 F. (2d) 69; affirmed by an equally divided court,