Receding from an arrangement it once made to advance money to settle the federal tax liabilities of unrelated taxpayers, plaintiff now seeks to recover that sum from the Federal Government. In 1951, the Banner Bed Company and its stockholders, the Liebermans, owed federal income taxes substantially in excess of $50,000. For reasons of his own, Morris Rubin, who owned and controlled plaintiff but was not connected with Banner or the Liebermans, decided to make available $50,000 for use in compromising these obligations of the others; he wished, though, to make sure that he would get this money back if the Government rejected or took no action on the compromise. To protect this interest, plaintiff’s wholly owned subsidiary (Morgan Manufacturing Corporation) 1 handed over the money to a firm of lawyers (Schwartz & Freeman) as escrow agents, under an agreement that the money was to be used to settle the tax liability of the others, but on condition that any offer to the Internal Revenue Service was to expire on March 15, 1952, and also that if the offer was not accepted by that date, or if it was earlier rejected, the money was to be returned to the escrow agents for delivery to Morgan. An offer in compromise in the amount of $50,-000 was then made by Banner and the Liebermans, stating that the money had been “borrowed” and was to be returned to Schwartz & Freeman if the offer was rejected or if no final action was taken by March 15, 1952. On the same day the escrowees sent a letter to the Service, enclosing a certified cheek of their own, and asking that it be returned in the same circumstances.
No action was taken by the Service for some time. In 1953, the deadline in the offer (of March 15, 1952) was eliminated with plaintiff’s consent, and the Service was told that the money was to be returned to the escrow agents оnly in case of rejection. In 1957, the Service informed the several taxpayers that, to remedy technical objections, separate compromise offers would have to be made for each, in place of the lump sum offer previously tendered on behalf of all. As a result, later in the same year, separate *666 offers totalling $50,000 were made for the individual taxpayers; Banner Bed Company (which by then was practically dead) was entirely eliminated. The funds which came from plaintiff remained on deposit for use in connection with the revised compromise offers. The plaintiff’s escrow agents were aware of and approved the change and there is no reason to think that they exceeded their authority or acted contrary to plaintiff’s wishes.
By the close of 1958, the Internal Revenue Service had not yet acted on the revised offers but the plaintiff, again for reasons of its own, was no longer willing to continue with the arrangement. In January 1959, the plaintiff, through its escrow agents, demanded the return of the funds. Upon refusal of its demand by the Service, plaintiff instituted suit in this court. In 1962, while the suit was pending, the Commissioner of Internal Revenue accepted the individual revised offers of compromise, subject to this court’s determination that defendant was entitled to retain the funds. 2
Two major issues are presented: (1) Does the court have jurisdiction over this action brought by a nontaxpayer to retrieve its funds deposited with the Government in connection with an offer for the compromise of tax deficiencies assessed against a third party? (2) If the court has jurisdiction, does the plaintiff or the escrow agency meet the conditions under which a nontaxpayer providing such funds has the right to withdraw them?
I. Jurisdiction
Our general jurisdictional statute, 28 U.S.C. § 1491, confers power on this court to render judgment on “any claim against the United States founded either upon the Constitution, or any Act of Congress, or any regulation of an executive department, or upon any express or implied contract with the United States, or for liquidated or unliquidated damages in cases not sounding in tort.” Plaintiff alleges four separate jurisdictional grounds, i. e., that its action is founded upon provisions of the Internal Revenue Code and the Treasury Regulations, as well as upon an implied contract with the United States, and that its suit is for liquidated damages not sounding in tort. The defendant denies that we have jurisdictiоn under any of these heads.
Section 7122 of the Internal Revenue Code of 1954 gives the Secretary of the Treasury (or his delegate) authority to compromise criminal and civil tax cases (prior to reference to the Department of Justice), and prescribes the procedure by which formal compromises may be effected. Section 7809 provides for the placement of funds offered in compromise in a deposit fund account, and for the return of such funds to the offeror in the event of rejection by the Secretary of the Treasury. Treasury Regulation on Procedure and Administration (1954 Code), § 301.7122-1 (d) (4), states that “an offer in compromise may be withdrawn by the proponent at any time prior to its acceptance.” 3 Plaintiff claims entitlement to the $50,000 under these statutes and the regulation.
*667
Nevertheless we are without jurisdiction, defendant insists, because these provisions, properly interpreted, do not grant plaintiff the rights it asserts, and therefore its claim is not in truth “founded” upon an Act of Congress or an executive regulation, as 28 U.S.C. § 1491 requires. This contention wrongly equates the issue of jurisdiction with the merits. “As frequently happens where jurisdiction depends on subject matter, the quеstion whether jurisdiction exists has been confused with the question whether the ■complaint states a cause of action.” Montana-Dakota Utilities Co. v. Northwestern Public Service Co.,
These same principles have applied, and still apply, to this court, within the ambit of its limited jurisdiction. In general, a claimant who says that he is entitled to money from the United States because a statute or a regulation grants him that right, in terms or by implication, can properly come to the Court of Claims, at least if his claim is not frivolous but arguable.
4
Where an Act of Congress (e. g., United States v. Emery, Bird, Thayer Realty Co., supra,
Like reasoning sustains the alternative point that this court has jurisdiction on the basis of a сontract implied in fact between plaintiff (or the escrow agents) and the Treasury Department. When an action is founded on an Act of Congress or an executive regulation, as this one is, there of course need be no implied agreement with the United States as an independent ground for jurisdiction. E.g., Crain v. United States,
As its last assault on jurisdiction, the defendant cites United States v. Sherwood,
II. Merits
Of the two provisions of the Internal Revenue Code on which this claim is founded, it is more obvious that Section 7122 does not, expressly or impliedly, grant any right to recover the $50,000. That section merely authorizes formal compromises and prescribes certain procedures not now relevant; nothing in it deals with the deposit or return of monies. Section 7809 is more pertinent since it provides for the special deposit of sums offered in compromise and that “upon the rejection of any such offer, the Secretary or his delegate shall refund to the maker of such offer the amount thereof” (emphasis added). Most relevant of all is the Treasury Regulation, footnote 3, supra, which declares that “an offer in compromise may be withdrawn by the proponent at any time prior to its acceptance” (emphasis added). We discuss the regulation first, then section 7809.
We assume, without deciding, that the term “proponent” covers certain classes other than the taxpayer. The regulation seems deliberately to use “proponent” instead of taxpayer; the official form for an offer in compromise (Form 656) also seems to use “proponent” as distinct from “taxpayer”; and the form for Statement of Financial Condition and Other Information (to be filed with an offer in compromise) (Form 433), at least in its current version, expressly requеsts, “if proponent is not taxpayer,” the proponent’s name, address, and “relationship to taxpayer (partner, president, father, etc.).” But we think, in any event, that the “proponent” must be a person who submitted the offer in compromise (perhaps together with the taxpayer), not simply one who advanced or supplied the funds accompanying the offer. It is natural to interpret “proponent” as a person who *670 proposed or made the offer, i. e., an offeror. The offer, of course, is the offer-in-compromise, and a proponent would be one who made that proposal to the Internal Revenue Service. As English is normally used, it would be strained to read the word as including one who is no more than the source and owner of the money transmitted for the potential •settlement. And there would be great practical difficulties for the Government, if “proponent” were given the latter meaning, in determining precisely who •owned the sums submitted with the compromise offer.
The circumstances surrounding the settlement offer in this case afford an excellent example of the practical burdens. 'The vehicle through which came the funds for the оffer was an escrow agreement under which the plaintiff, as “Lender”, gave $50,000 to the escrow •agents (Schwartz & Freeman) for deposit with the Internal Revenue Service '“to settle the aforesaid liabilities of the Borrowers” (the taxpayers). The alleged consideration for tendering the '$50,000 was specified in a collateral •agreement to the terms of which plaintiff .seemingly assented orally, but which it never signed. By that agreement, plaintiff’s obligation to retain the corporate taxpayer (Banner Bed Company) as its •sales agent was curtailed in return for the $50,000 loan. Stating that it never finаlly entered into this agreement, plaintiff strenuously objects to any inferences to the contrary which may be drawn from the findings. See finding 10(b). Plaintiff alleges that, instead, the loan .agreement with the taxpayers (Banner ‘Bed Company and the Liebermans) was to become effective only if the compromise were accepted by the Government. Until then, the plaintiff contends, only a .loan offer had been made, which could be revoked at any time because not support-ed by consideration; until then, the money belonged wholly to plaintiff and the 'taxpayers had no rights in it.
For the purposеs of our decision, it is mot necessary to pass upon these disputed questions. The point is that the existence of the dispute, in itself, adumbrates the problems which would face the defendant in determining the true owner of the funds so as to permit their withdrawal by someone other than the offeror (or the taxpayer). When an outside person provides the funds, a multitude of potential arrangements and relationships may be created. The funds may be loaned for a specific time period or for an indefinite period ending with the acceptance or rejection of the compromise by the Government; they may be given in connection with a loan agreement providing for their unrestricted use, or they may be given only for use as a compromise offer; or there may not be a loan at all, but rather a gift or the repayment of a debt, etc. The permutations are many, and each variation may affect ownership. To determine the true owner, the Government would often have to examine the documents back of a compromise payment, and to take other steps necessary to ferret out the interested persons, the nature of thе relationship, and the purpose of the transaction by which the offeror received the funds. This would be a continuing and recurrent burden, possibly a complex and protracted one. Moreover, if the Government turned out to be mistaken, it would find, not only that it had lost a good compromise offer, but that it must also repay the same amount to the actual legal owner. These are troublesome tasks and risks which the Internal Revenue Service could shoulder, if it wished, but we think that if it had done so it would have used more explicit language than the one word “proponent.” Cf. J. C. Pitman & Sons v. United States,
For these reasons, practical and textual, we hold that “proponent”, as used in this Treasury Regulation, does not go beyond an offeror and, more especially, does not impose any duty on the Government to determine the real owner *671 of the funds accompanying the offer. 8 Under that reading, plaintiff and the intervening escrowees have no rightful claims since neither can be deemed an offeror. The offer was signed and submitted by Banner Bed Company and the Liebermans; they also supplied the financial statements. The escrow agents were merely described as the source of the “borrowed” funds accompanying the offer; plaintiff was not mentioned at all in the offer. The submission, even as expanded to include the escrow agents’ contemporaneous letter forwarding their check, said only that the money was to be returned to Schwartz & Freeman if no final action was taken by March 15, 1952 (a limitation which was later removed), or if the offer was rejected. See findings 13-14. Nothing was said about the right of Schwartz & Freeman (or the plaintiff) to withdraw the money or the offer. Nor was there any suggestion that either or both were joined as offerors; on the contrary, the escrowees’ letter specifically referred to the Banner Company and the Liebermans as making the offer.
It makes no difference that, as plaintiff urges, the defendant may have had sufficient actual notice m this particular ease to enable it to determine the true ownership of the deposited funds, and thus to allow withdrawal by the owner. Under the regulation, as we read it, that was not the Service’s obligation. It had no responsibility to delve into the underlying arrangements or to evaluate the true ownership of the funds transmitted with the compromise offer. Since it was-clear on the face of the offer that plaintiff and the escrow agents were not offerors, they were likewise not “proponents” under the regulation and could not themselves withdraw the money “at any time-prior to its acceptance.” 9
A fortiori, Section 7809 of the Code does not aid plaintiff and the escrowees. That provision declares that, upon “refection” of a compromise offer by the Government, “the Secretary or his delegate shall refund to the maker of such offer the amount thereof” (emphasis added). This declaration is unavailing for two reasons. It deals only with the rejection of an offer, not with withdrawal prior to action by the Service. There was in this case no rejection by the Service; the offers, as revised, were accepted, belatedly, in 1962. 10 Also, the- *672 statute specifically designates an offeror as the recipient of the refund, not someone who may have supplied the funds but is not'an offeror.
The plaintiff and the intervenors are likewise unable to recover on the basis of a contract implied in fact with the United States. Assuming that such a contract came into being when the Government accepted the money, there has been no breach. In the letter accompanying the funds, the plaintiff, through its escrowees, stipulated that, if the compromise offer were accepted, the defendant was entitled to retain the money; and that, if rejected, the funds were to be returned to the escrow agents. No other conditions were stated and no other relevant condition can be implied. Since the defendant never rejected the compromise offer and it was subsequently accepted, the only pre-conditions to the Government’s right to the funds under the implied contract have in fact been met. No breach occurred. 11 We also hold that, if such an implied contract was made, it was adequately supported by consideration; in return for the deposit, the Government agreed to consider the taxpayers’ offer. But if there was no consideration, as plaintiff now says, then there was no implied agreement upon which recovery could be premised.
Plaintiff, which obviously feels that it has paid out $50,000 to benefit others but without any advantage to itself, may have a cause of action against the taxpayers (or someone else) for unjust enrichment, breach of contract, or breach of trust. But it has no claim against the defendant. The United States did not violate any pertinent statute or regulation, and it did not break any agreement with or on behalf of plaintiff (or the escrowees). The money which the Internal Revenue Service took was voluntarily proffered in satisfaction of tax liabilities admittedly owing to the United States; and the Service complied with the only conditions imposed by the compromise-offerors or by the plaintiff's own escrow agents. No rightful expectation of plaintiff's was frustrated by the Service’s actions. In sum, the Government has not acted improperly and it has not been unjustly enriched. 12
The plaintiff and the intervening escrow agents are not entitled to recover. The petition and the intervening petition are dismissed.
Notes
. Plaintiff brings this action as the successor in interest of its subsidiary, Morgan Manufacturing Corporation, which was created in late 1950 and continued in business until the end of December 1951, at which time plaintiff purchased its assets. At some later date, Morgan was dissolved.
. The individual taxpayers are third-party defendants here, and Schwartz & Freeman, the escrow agents, are intervenorplaintiffs. Banner Bed Company, the corporate taxpayer for which the compromise offer was originally made but which was later eliminated, is not a party.
. In fuller text, Treasury Regulation § 301.7122-1 (d) (4) provides: “An offer in compromise may be withdrawn by the proponent at any time prior to its acceptance. In the event an offer is rejeeted, the proponent shall be promptly notified in writing. Frivolous offers or offers submitted for the purpose of delaying the collection of tax liabilities shall be immediately rejected. If an offer in compromise is withdrawn or rejected, the amount tendered with the offei-, including all installments paid, shall be refunded without interest, unless the taxpayer has stated or agreed that the amount tendеred may be applied to the liability with respect to which the offer was submitted.”
. On the qualification of non-frivolity and substantiality, see Montana Catholic Missions v. Missoula County,
. Where an action rests npon a statute or regulation, that particular enactment need not contain a specific provision permitting a suit for money; our general jurisdictional statute, 28 U.S.C. § 1491, serves the purpose. Simon v. United States,
. In United States v. Babcock,
. Plaintiff also contends, on the basis of the language in 28 TJ.S.C. § 1491, that this court possesses jurisdiction in any suit for liquidated or unliquidated damages not sounding in tort. Since we have jurisdiction under the three grounds previously discussed, we need not pass on this question. As indicated in footnote 12, infra, the result on the merits would be no different under this fourth head of jurisdiction.
. In Dynamic Service, Inc. v. Granquist,
. We do not find any adequate basis in the record for determining that the Internal Revenue Service in fact recognized plaintiff or the escrow agents as “proponents.” Service personnel conferred with plaintiff and possibly the escrow agents, at some time or times, in tbe period between tbe making of tbe offer in 1951 and tbe attempted withdrawal by tbe agents-in 1959. But we cannot infer from tbe bare fact of such consultations that tbe Government accepted plaintiff or tbe agents as proponents, or even that it recognized them as the true owner of the-funds.
. Plaintiff claims that the Service rejected the offer when it required the taxpayers, for formal reasons, to file separate-offers on behalf of each taxpaying group-in place of a lump sum offer on behalf' of all. This was not a rejection but merely advice to the taxpayers to perfect their submission in order to prevent a rejection. Nor was there a rejection of the initial offer, or a return, of the funds to the taxpayers contrary to the terms of the offer, in the technical mechanics by which the original $50,000-was applied to the revised offers. See findings 22-23. The escrow agents had' previously authorized the $50,000 to be- *672 applied to the separate offer; plaintiff, too, must be held to have consented, either actually or constructively. See findings 19-20.
. The Government did not injure plaintiff in acting on the offer in 1962. The time limit on the use of the fund had been specifically removed in 1953. In June 1957 the plaintiff and the escrowees had consented to the use of the same $50,000 in connection with the revised separate offers. By that time the money had been on deposit for almost six years, without any complaint by or on behalf of plaintiff. The money was first applied to the new offers in October 1958. Thе escrowees’ demand on defendant came shortly thereafter in January 1959; that was the first indication of dissatisfaction by or on behalf of plaintiff. After the- escrowees’ demand in January 1959, there was a dispute as to their entitlement to the money. Suit here was brought on April 1, 1959. In those circumstances, the delay in action by the Service from January 1959 until July 1962 was not detrimental to plaintiff or the escrow agents.
. For these reasons, if we were also to uphold our jurisdiction under the fourth head of jurisdiction proposed by plaintiff — the clause of 28 U.S.C. § 1491 which gives this court power to decide claims “for liquidated or unliquidated damages in cases not sounding in tort” — there could still be no recovery. If, as we hold, the causes of action based on the Code, the regulation, and implied contract have no merit, we know of no other basis for saying that the plaintiff (or the escrowees) should recover from the United States. The Internal Revenue Service did not act illegally, improperly, or unreasonably; the money was paid over voluntarily under conditions, set by plaintiff and its agents, which have been fully met; the money satisfied a debt due the Federal Government; and the United States has not been unjustly enriched.