Bryant Paper Co. v. Holden

65 F.2d 1012, 2 C.B. 261, 12 A.F.T.R. (P-H) 911, 1933 U.S. App. LEXIS 3247, 1933 U.S. Tax Cas. (CCH) 9376

Opinion

HICKS, Circuit Judge.

The petition is denied. We deal here only with point IV thereof, which is that the opinion is contrary to the decisions of the Supreme Court in the eases of United States v. Factors & Finance Co., 288 U. S. 89, 53 S. Ct. 287, 77 L. Ed. 633, and United States v. Memphis Oil Co., 288 U. S. 62, 53 S. Ct. 278, 77 L. Ed. 619, both decided January 9, 1933. We cannot yield to this insistence. In each of these cases a general timely, claim for refund was followed by a specific amendment relative thereto and explanatory thereof tendered after the expiration of the statutory period. Such is not this ease. Here there was a definite, specific, and timely claim for' refund for depreciation upon buildings and machinery and for losses upon certain accounts. After the statute of limitation had run, plaintiff sought to file a refund claim based upon an allowance by the Commissioner of depreciation on the Nashwaak contract. The claim filed after the expiration of the statutory period was a complete departure from the timely claim and bore no relation (hereto. The ease should therefore be aligned with the case of United States v. Henry Prentiss & Co., Inc., 288 U. S. 73, 53 S. Ct. 283, 77 L. Ed. 626, also decided by the Supreme Court on January 9, 1933, rather than with the eases relied on in the petition to rehear..