Walter

158 Ct. Cl. 701, 1962 U.S. Ct. Cl. LEXIS 196, 1962 WL 1599

Opinion

Income tax; claim for refund; limitation of actions.— Plaintiffs sued to recover income taxes claimed to have been overpaid for the years 1951 and 1952 on royalty income on the ground that by virtue of the Act of June 29, 1956, 70 Stat. 404, plaintiff was given the right to treat the income from royalties as capital gains rather than as ordinary income for income tax purposes. Defendant contended that, assuming the 1956 Act created a new cause of action, the claim for refund was not timely because it was filed more than two years after the effective date of the act, i.e., the date of constructive payment of the tax. Verckler v. United States, 145 Ct. Cl. 252; Eastman Kodak Co. v. United States, 155 Ct. Cl. 256. On July 2, 1962, the court, upon consideration of defendant’s motion to dismiss the petition, together with the opposition thereto and oral argument of counsel, and on the basis of the decision of the United States Court of Appeals for the Third Circuit in Smith v. United States, 304 F. 2d 267; Lorenz v. United States, 155 Ct. Cl. 751, and Zacks v. United States, 150 Ct. Cl. 814, dismissed the petition.