These cases arose out of the same transaction and present, on substantially the same facts, the same question of law. Reference will be made in the opinion only to the McDonnell case.
The action was brought by McDonnell in the Court of Claims on November 4, 1929 to recover $4,549.03, with interest from the date of payment, October 23, 1926. McDonnell filed his individual income tax return for 1917 on April 1, 1918, and paid the amount shown thereon to be due. The sum now sought to be recovered was paid to the collector of internal revenue for the Second district of New York pursuant to an assessment of an additional income tax for the year 1917, which was made by the Commissioner of Internal Revenue on October 9, 1926. There had been a waiver on February 23, 1926, of the statutory limitation upon the time for making the assessment. Claims for refund were made on December 27, 1928, and May 31, 1929, alleging that the waiver was invalid and that the amount claimed was collected after the running of the statute. The claims for refund were rejected on March 6, 1929, and July 25, 1929. The Court of Claims entered judgment for the defendant. 59 F.(2d) 290. Because of conflict of the decision with that in Uncasville Manufacturing Co. v. Commissioner (C.C.A.) 55 F.(2d) 893, certiorari was granted, limited to the question of the validity of the waiver under section 278(e) of the Revenue Act of 1924 (26 U.S.C. § 1062 note). 287 U.S. 589.
The waiver was given under the following circumstances: McDonnell was in 1917 a member of the firm of McDonnell & Truda, which in that year filed its income tax return and paid the taxes therein shown to be due. On March 18, 1923, that is, within five years after the filing of the return and before the expiration of the period allowed by section 250(d) of the Revenue Act of 1921 (42 Stat. 264) for assessment and collection of an additional tax, the Commissioner made a jeopardy assessment against the firm of $100,005.14. On November 30, 1925, that is, after the expiration of the statutory period for making an additional assessment against the plaintiff, the Commissioner notified the plaintiff that the amount payable by the firm for additional tax should, because of errors, be reduced to $24,863.28; but that a reduction of the liability of the partnership necessitated additional taxes to the individual members of the firm; and that he would not make the reduction to the firm unless plaintiff and his partner would waive the statute of limitations so as to permit additional individual taxes, and would pay the amounts assessed against them. Each gave the waiver requested, and paid the amount now sought to be recovered.
It is conceded by McDonnell that the tax was payable, unless it was barred by the period of limitations prescribed in section 250(d) of the Revenue Act of 1921 or section 277(a)(2) of the Revenue Act of 1924 (26 U.S.C. § 1057 note). It is conceded by the government that it was so barred, unless the limitation was removed by the waiver signed by McDonnell on February 23, 1926, which, by its terms, purported to extend to December 31, 1926, the time within which the Commissioner could assess additional taxes for the year 1917.
McDonnell claims that the Revenue Act of June 2, 1924, renders the waiver ineffective, because the assessment of the tax had been barred on April 1, 1923. The contention is that, since the period of limitation had expired before the passage of the 1924 act, the waiver was inoperative under the express terms of paragraph (e) of section 278 of that act, which declares: "This section shall not (1) authorize the assessment of a tax or the collection thereof by distraint or by a proceeding in court if at the time of the enactment of this Act such assessment, distraint, or proceeding was barred by the period of limitation then in existence, or (2) affect any assessment made, or distraint or proceeding in court begun, before the enactment of this Act."