Opinion
No. K-166.
June 1, 1931.
Suit by M.J. Whittall Associates, Limited, against the United States.
Judgment for plaintiff.
This case having been heard by the Court of Claims, the court, upon the evidence adduced, makes the following special findings of fact:
Plaintiff is an association, and the Commissioner of Internal Revenue found it had overpaid its income and profits taxes for the fiscal year ending August 31, 1920, in the sum of $43,996.40, and allowed interest thereon in the sum of $9,318.80, being from November 17, 1924, when the overpayment was made, to May 28, 1928, the date of the allowance by the Commissioner. On June 29, 1928, a check for the amount of the overpayment and interest in the total amount of $53,315.20 was erroneously drawn by the disbursing clerk of the Treasury Department to the order of "M.J. Whittall" instead of to "M.J. Whittall Associates, Ltd.," and mailed to the plaintiff together with a certificate of overassessment.
On August 21, 1928, the executors of the estate of M.J. Whittall consented in writing to the correction of the check in order that it might be changed from "M.J. Whittall" to "M.J. Whittall Associates, Ltd.," the plaintiff herein, and on October 27, 1928, the Comptroller General of the United States, pursuant to this consent, changed the payee of the check, and the corrected check was then transmitted to the plaintiff. On November 27, 1928, plaintiff duly filed a claim for additional interest in the amount of $1,066.30, and on January 17, 1929, the Commissioner allowed additional interest in the amount of $198.28 from May 28, 1928, the date to which he had previously allowed interest, to June 25, 1928.
Howe P. Cochran, of Washington, D.C. (Harry Friedman, of Washington, D.C., on the brief), for plaintiff.
Lisle A. Smith, of Washington, D.C., and Charles B. Rugg, Asst. Atty. Gen. (D. Louis Bergeron, of Washington, D.C., on the brief), for the United States.
It appears that by the error of a clerk a check for an overassessment of taxes due the plaintiff was made to another party and then sent to the plaintiff. On discovery of the error, the plaintiff consented to a correction of the check, but before the check could be corrected and paid considerable time had elapsed, on account of which plaintiff seeks to have an additional allowance of interest on the overpayment. The Commissioner allowed additional interest, but not sufficient to cover the amount to which plaintiff is entitled by reason of the delay. Subsequently, the general counsel for the Bureau of Internal Revenue filed an opinion in which we concur, that there was no defense to the claim, and in substance that interest should be computed and allowed up to and within thirty days of the date of the corrected check. The date of the corrected check was October 27, 1928, and the date to which interest should be computed is therefore September 27, 1928. When so computed, the amount due the plaintiff was found by the Bureau to be $674.41. Judgment will accordingly be rendered to the plaintiff for the amount so found to be due.