PAGE, Internal Revenue Collector, v. LAFAYETTE WORSTED CO., 66 F.2d 339

WILSON, Circuit Judge. The Lafayette Worsted Company brought an action at law in the United States District Court for the District of Rhode Island against Frank A. Page, collector of internal revenue in that district, to recover taxes it claims were illegally assessed and collected. Jury trial was waived, and the case was tried before the District Judge. He entered judgment in favor of the plaintiff for $202,888.-20, with interest from January 19, 1926, and 'the defendant appealed. The taxes in question are the meóme and excess profits taxes for the years 1918 and 1919.

For 1918 the plaintiff’s return showed a tax liability of $811,443.94, which was paid in due course. Upon a reaudit in 1922, the Commissioner determined that the correct tax for 1918 was $801,261.06, and the difference was refunded. For the year 1919 the plaintiff’s return showed a tax liability of $586,-512.98, which was duly paid. Upon a reaudit in 1923 this amount was found to be too large by $4,378.68, and the excess was refunded.

In March, 1923, the plaintiff applied to the Commissioner for a special assessment of its taxes for the years in question under the provisions of sections 327 and 328 of the Revenue Act of 1918 (40 Stat. 1093). This application was granted by the Commissioner. The taxes for both years were accordingly redetermined upon a special assessment, so called. As a result of this special assessment, the Commissioner determined that the plaintiff had been overassessed $81,770.97 for the year 1918, and $86,021.56 for the year 1919. Those amounts were in due course refunded to the plaintiff.

In March, 1924, the Commissioner advised the plaintiff that his determination as to over-assessments for the years 1918 and 1919 was erroneous. Jeopardy assessments of the amounts previously refunded, plus interest and certain penalties, were made forthwith, followed shortly by notice and demand for payment. Litigation followed by which the plaintiff endeavored to prevent the collection of the jeopardy assessments.

The plaintiff failed in the litigation; and in January, 1926, it paid the disputed assessments, in the amount of $81,770.97, with interest amounting to $13,014.27, and a penalty amounting to $4,088.55 for the year 1918,- and in the amount of $86^021.56, with interest amounting to $13,691.77 and a penalty of $4,301.08 for the year 1919. The total payments came to $202,888.20, which is the amount sought to be recovered in the present aetion. All payments were made under protest. The plaintiff has complied with all formalities required by law for the maintenance of this aetion.

The ease was tried on a stipulation of facts agreed to by both parties, with the right to introduce further evidence not inconsistent with the facts stipulated.

The stipulation clearly covered all the facts relating to the assessment of the taxes for the two years in question, the amounts, and the refunds, and in addition certain correspondence between the Commissioner and the taxpayer relating to the reauditing of the tax, the allowance of the overassessments, and the re-examination of the. taxpayer’s application for reassessment of the taxes for the years under sections 327 and 328 of the 1918 act, and the jeopardy assessment.

A deposition of the xYssistant Commissioner of Internal Revenue with certain exhibits thereto attached was offered by the plaintiff as bearing' on the grounds on which the Commissioner reopened the case and reversed his previous findings that there was an overassessment for the two years in question.

The District Court first excluded both the deposition and exhibits on the ground that it disclosed facts with reference to the business of other taxpayers engaged in similar business which should not, as a matter of public policy, be disclosed, and, in addition, was irrelevant to the issues in the case, apparently on the erroneous ground that the burden was on the Commissioner to prove on what grounds he based his jeopardy assessments. Austin Co. v. Commissioner (C. C. A.) 35 F.(2d) 910. Before the case was closed, however, he admitted the exhibits.

The deposition was offered and marked and “left with the clerk for any subsequent use which may be made of it by the parties,” but was not admitted. The bill of exceptions, it is true, does not state that it includes all the evidence bearing on the issue presented by the defendant’s exception; but from the bill of exceptions it clearly appears that the stipulation of facts, with the correspondence referred to, and the exhibits attached to the deposition, constitute all the evidence introduced at the hearing before the District Court, and on which the judge based his judgment.

Since the record contains all the evidence on which the District Court based its judgment, the omission to so state in the bill of exceptions does not prevent the appellate court from considering the issue raised by a motion for a judgment for either party; exceptions being taken before judgment to the refusal to grant the motion. Board of Com’rs of Gunnison County v. Rollins, 173 U. S. 255, 19 S. Ct. 390, 43 L. Ed. 689; Crowe v. Trickey, 204 U. S. 241, 27 S. Ct. 275, 51 L. Ed. 454; St. Louis v. Western Union Tel. Co., 148 U. S. 92, 96, 13 S. Ct. 485, 37 L. Ed. 380.

While the motion for judgment by the defendant was not in the usual form, as it assigned as a reason that the plaintiff had not sustained the burden of proof that the taxes of the plaintiff have been overpaid, and that the taxes involved were erroneously assessed and collected, we think it raises an issue of law, if there was no substantial evidence to support a judgment for the plaintiff, or upon the facts stipulated and the evidence no other conclusion could be reached than that the defendant was entitled to judgment.

While on a general finding of facts no issue of law is raised by exception to the judgment, Wilson v. Merchants’ Loan & Trust Co., 183 U. S. 121, 22 S. Ct. 55, 46 L. Ed. 113, a motion before judgment that judgment he entered for the defendant and refused and exception taken at the time, raises a question of law. Fleischmann Cons. Co. v. United States, 270 U. S. 349, 46 S. Ct. 284, 70 L. Ed. 624; Maryland Casualty Co. v. Jones, 279 U. S. 792, 795, 796, 49 S. Ct. 484, 73 L. Ed. 960; St. Louis v. Western Union Tel. Co. supra; United States v. Smith (C. C. A.) 39 F.(2d) 851, 855.

The issue raised by the ruling' and exception hero is whether the Commissioner had authority, no fraud by the taxpayer being claimed, or mistake of fact being shown, to change an assessment once made and a refund paid, if done within the period of limitation for the assessment of taxes for the year in question. The case of Woodworth v. Kales (C. C. A.) 26 F.(2d) 178, is cited as authority to the effect that, without fraud being shown, or mistake of law or in calculation, a Commissioner has no authority on the same state of facts to change an assessment once made and a refund paid.

But in that ease the question was as to the value of securities in 3 913, and the change was made, not by the Commissioner who made the first valuation, but by a successor. Sections 1312 and 1313 of the Revenue Act of 1921 (42 Stat. 313), and sections 1006 and 1007 of the Revenue Act of 3924 (26 USCA § 1249 note, and § 1250), would have disposed of the ease without further consideration. The reasoning of the able judge, therefore, has not the weight it might have if it were alone decisive of the ease. However, later. decisions of the Circuit Courts of Appeals, in the case of Austin Co. v.

Commissioner, supra, and Oak Worsted Mills v. United States (Ct. Cl.) 36 F.(2d) 529, Id. (Ct. Cl.) 38 F.(2d) 699, and especially McIlhenny v. Commissioner (C. C. A.) 39 39. F.(2d) 356, 357, which was approved by the Supreme Court in Burnet v. Porter, 283 U. S. 230, 51 S. Cf. 416, 75 L. Ed. 996, establish a contrary rule to that laid down in the Woodworth Case, and governs this ease.

In the Mellhenny Case the court said: “But the sole question presented by the record before ns is not whether the first action of the Commissioner in allowing the deduction was right or wrong, hut whether having once determined the matter, and the tax computed upon such determination hav- ing been paid, tbe Commissioner had power or authority, in the absence of fraud or other new evidence, to reopen the case, disallow the deduction theretofore allowed by him, and make a redetermination of the tax.

In support of their contention that the Commissioner was without power to reopen the ease and make a redetermination, the petitioners, the taxpayer’s executors, rely upon Woodworth v. Kales (C. C. A. 6) 26 F.(2d) 178, and the Commissioner’s order of January 20, 1923, while the Commissioner finds support for his opposite view in Botany Mills v. United States, 278 U. S. 282, 49 S. Ct. 129, 73 L. Ed. 379; L. Loewy & Son v. Commissioner of Internal Revenue (C. C. A. 2) 31 F.(2d) 652; Holmquist v. Blair (C. C. A. 8) 35 F.(2d) 10; Austin Co. v. Commissioner of Internal Revenue (C. C.

A. 6) 35 F.(2d) 910; sections 1312 and 1313 of the Revenue Act of 1921, 42 Stat. 227; and sections 1006 and 1007 of the Revenue Act of 1924, 43 Stat. 253 (26 USCA §§ 1249 note, 1250).. * * * “In the ease at bar, the statutory procedure was not followed, in that there was no agreement in writing, or otherwise, that the determination and assessment of February, 1924, should be final and conclusive.

As a consequence, we axe constrained to hold that the determination and assessment of 1924 were not final and conclusive, ánd that the Commissioner was not estopped or otherwise barred, by the payment and acceptance of the tax based on such determination and assessment, from reopening the case and making the further determination subsequently made by him.” In passing on the conclusion of the Circuit Court of Appeals in the McIlhenny Case, the Supreme Court in the case of Burnet v. Porter said: “The Court of Appeals sustained the power of the Commissioner upon the authority of McIlhenny v.

Commissioner of Internal Revenue [C. C. A.] 39 F.(2d) 356; and was clearly right in doing so.” We think there was no evidence in the ease at bar to sustain the ruling of the District Court. The judgment is contrary to the law laid down in the McIlhenny Case. It may be noted in passing, too, that - the fact that a penalty was imposed in making the jeopardy assessments indicates that the Commissioner, on re-examination, must have had evidence of some irregularity on the part of the taxpayer.

The judgment of the District Court is reversed, and the ease is remanded to that court, with instructions to order a judgment for the defendant.