Appeal from the District Court of the United States for the Eastern District of Illinois; Fred L. Wham, Judge.
Before ALSCHULER and SPARKS, Circuit Judges, and WILKERSON, District Judge.
The only question involved in this appeal is whether the claims for refund filed for each of the years involved are sufficient for the refunding of income taxes paid by appellant upon that part of its reported income with which it had credited itself on the accrual basis as due from George W. Armstrong & Sons but which was never paid, and which had subsequently been declared by the Mississippi court to be usurious and illegal.
The following statutes are pertinent:
Section 252 of the Revenue Act of 1921, c. 136, 42 Stat. 268: "That if, upon examination of any return of income made pursuant to * * * the Revenue Act of 1918, it appears that an amount of income * * * or excess-profits tax has been paid in excess of that properly due, then * * * the amount of the excess shall be credited * * * and any balance of such excess shall be * * * refunded to the taxpayer: Provided, That no such credit or refund shall be allowed or made after five years from the date when the return was due, unless before the expiration of such five years a claim therefor is filed by the taxpayer: * * *"
Section 281 (f) of the Revenue Act of 1924, c. 234, 43 Stat. 302 (26 USCA § 1065 note): "This section shall not * * * bar from allowance a claim * * * in respect of a tax for the taxable year 1919 or 1920 if such claim is filed before the expiration of five years after the date the return was due."
Section 1014 (a), section 3226 of the Revised Statutes, as amended, is amended (26 USCA § 156) to read as follows: Sec. 3226. "No suit or proceeding shall be maintained in any court for the recovery of any internal-revenue tax alleged to have been erroneously or illegally assessed or collected, or of any penalty claimed to have been collected without authority, or of any sum alleged to have been excessive or in any manner wrongfully collected until a claim for refund or credit has been duly filed with the Commissioner of Internal Revenue, according to the provisions of law in that regard, and the regulations of the Secretary of the Treasury, established in pursuance thereof; * * *" (The provisions of this section are also found in section 1113 (a) of the Revenue Act of 1926, c. 27, 44 Stat. 116 [26 USCA § 156].)
Article 1306 of Treasury Department Regulations 65, promulgated October 6, 1924, contains the following: "Claims for refund of taxes erroneously collected. -- Claims by the taxpayer for the refunding of taxes, interest, penalties, and additions to tax erroneously or illegally collected shall be made on Form 843.All facts relied upon in support of the claim should be clearly set forth under oath."
Article 1304 of Treasury Department Regulations 69, promulgated August 28, 1926, substantially follows the above regulation.
The United States may not be sued except upon its consent, and then only upon the conditions under which it has consented to be sued, even though they be purely formal. Rock Island, Arkansas & Louisiana R. Co. v. United States, 254 U.S. 141, 41 S. Ct. 55, 65 L. Ed. 188; United States v. Michel, 282 U.S. 656, 51 S. Ct. 284, 75 L. Ed. 598; Eastern Transportation Co. v. United States, 272 U.S. 675, 47 S. Ct. 289, 71 L. Ed. 472; Ritter v. United States (C.C.A.) 28 F.2d 265.
In order to support an action against the United States to recover an overpayment of taxes, the complainant must present to the Commissioner of Internal Revenue, within five years from the date taxpayer's return was due, a claim for refund, in which claim shall be clearly stated all facts relied upon in support of the claim. United States v. Felt & Tarrant Mfg. Co., 283 U.S. 269, 51 S. Ct. 376, 377, 75 L. Ed. 1025; Wausau Sulphate Fibre Co. v. United States (Ct. Cl.) 49 F.2d 665; Art Metal Const. Co. v. United States (C.C.A.) 47 F.2d 558.
After the rejection of a claim for refund, and after the period of limitation for filing new or further claims for refund has expired, appellant cannot amend its rejected claim by alleging for the first time a specific ground for recovery not theretofore presented to the Commissioner. Solomon v. United States (C.C.A.) 57 F.2d 150; Wausau Sulphate Fibre Co. v. United States, supra; Sugar Land R. Co. v. United States (Ct. Cl.) 48 F.2d 973; Art Metal Const. Co. v. United States, supra.
Appellant contends, however, that the facts presented in his petition of July 5, 1927, to reopen and reconsider the claim which was rejected on October 5, 1926, was not a new claim, but a mere particularization of the general allegation in the original claims that appellant "in compiling the income included items as income which in fact ...