Opinion
No. L-354.
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 Highland Milk Condensing Company 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 $4,748.38, 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. For the period January 1 to September 30, 1923, the defendant erroneously and illegally assessed and collected from plaintiff taxes in the amount of $333.04. Thereafter, on September 15, 1928, the Commissioner of Internal Revenue duly allowed an overpayment of the amount of the illegal collection together with interest thereon of $32.49, totaling $365.53, which was certified to the Comptroller General for payment. The Comptroller General withheld payment for the reason hereinafter mentioned.
2. For 1918 the defendant erroneously and illegally assessed and collected from plaintiff an income tax of $4,382.85. Thereafter, on July 15, 1930, the Commissioner duly allowed an overpayment in this amount for 1918 and issued to plaintiff a certificate of overassessment therefor, and certified the overpayment to the Comptroller General for payment.
3. September 15, 1928, the Comptroller General withheld payment of $365.53, and on November 6, 1930, withheld payment of $4,382.85 duly allowed by the Commissioner, and applied these amounts 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 the milk contract was set up by the United States as a counterclaim in the case of Highland Milk Condensing Co. v. United States, which counterclaim was decided adversely to the defendant by this court March 7, 1932, 56 F.2d 682, 74 Ct. Cl. 267. There were no overpayments by the defendant to plaintiff in connection with the milk contract, 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 $4,748.38 sought to be recovered in this case with interest represents overpayments of taxes and interest duly allowed by the Commissioner of Internal Revenue, payment of which was withheld by the Comptroller General, and the amount offset against an alleged indebtedness of plaintiff to the United States for an alleged overpayment of excess profits for evaporated and condensed milk sold and delivered by plaintiff to the United States under contract. This court decided in Highland Milk Condensing Co. v. United States, 56 F.2d 682, 74 Ct. Cl. 267, that plaintiff was not indebted to the government. This suit was instituted after that decision, and no counterclaim is interposed. Plaintiff is therefore entitled to recover the overpayments totaling $4,748.38, with interest from the dates withheld to March 3, 1933. See Helvetia Milk Condensing Co. v. United States, 3 F. Supp. 662, decided this date by this court. It is so ordered.
BOOTH, Chief Justice, did not hear this case on account of illness, and took no part in its decision.