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92 C. Cls,



that the plaintiff should pay interest from July 31,
and where on September 28 the plaintiff filed its
capital-stock-tax return showing a tax of $15,000,
which was thereupon assessed, and where the ex-
cess paid was thereafter refunded, without inter-
est; it is held that plaintiff, under the provisions
of section 614 (a) of the Revenue Act of 1928, is
entitled to recover interest on the overpayment.
Atlantic Oil, 441.

LIV. (15) An "overpayment" is not a "deposit." Id.
LV. (16) Payment was made "in respect of any internal rev-
enue tax" within the meaning of the statute. Id.

LVI. (17) Where corporation, incorporated in 1904, with broad
powers, for the purpose of taking over the real
property of a deceased person's estate, engaged in
the management and development of said property,
and exercised generally the activities permitted by
its charter; and where in 1929 the corporation by
resolution of its board of directors declared a pur-
pose to liquidate its affairs and thereafter distrib-
uted among its stockholders a liquidating dividend;
and where thereafter said corporation discontinued
many of the activities previously engaged in and
generally reduced its operation to the maintenance
and management of its remaining properties and
the making of such sales as were deemed advanta-
geous, and acquired no new properties nor engaged
in any new activities; it is held that such corpora-
tion during such period in question was not “en-
gaged in business" within the meaning of the
capital stock tax act and is entitled to recover the
amounts assessed as capital stock tax for the years
1934, 1935, and 1936. Johnson, 483.

LVII. (18) The capital stock tax is a tax upon the privilege of
doing business in a corporate capacity but two ele-
ments must appear to make the tax applicable to
a corporation: (1) transactions in corporate form;
and (2) these transactions must be of such nature
as to constitute doing business. Id.

LVIII. (19) Where the operations and transactions of the corpora-
tion were carried on merely for the purpose of re-
ducing the property of an estate to a form in which

it could readily be distributed among the heirs, such
activities do not constitute a business.


92 C. Cls.


LIX. (20) Where corporation confined its activities to the own-
ing, holding, and preservation of its property with
intent to dispose of said property and to distribute
its avails in liquidation, and did only the acts
necessary to continue that status; such corporation
during the period involved was not subject to the
capital stock tax. Id.


LX. (1) The Federal estate tax is levied "upon the transfer of
the net estate," which is ascertained by deducting
from the gross estate charges that must be paid
before distribution of the estate can be made; the
tax is on the transfer, and deductions allowed are
deductions with respect to the things transferred.
Steedman, et al., 123.

LXI. (2) When the act speaks of decedent's estate or of
decedent's property it speaks of her estate or her
property, the transfer of which is subjected to the
tax. Id.


LXII. (1) Where plaintiff in 1938 transferred to his three
daughters certain property, it is held that the
evidence adduced establishes that the property so
transferred was not held by plaintiff as in trust,
of which the transfers were an accounting, but
that said transfers on the contrary were gifts,
and as such liable to the Federal gift tax. Lester,

LXIII. (2) Where during his wife's lifetime and from the date

of her death in 1918 until the first of 1930 plaintiff
treated as his own all of the property which he had
received from his wife, receiving the income on it,
paying taxes on it, disposing of it, enjoying it and
in all other respects treating it as his own, it is
held that plaintiff's actions were wholly inconsistent
with the idea that he held the property in trust.


LXIV. (3) Where, at different times, plaintiff. transferred to
his daughters certain money and property, which
money and property were at plaintiff's direction
in turn transferred to certain trusts established
for that purpose for the benefit of said daughters,
and where under the provisions of said trusts the
right of revocation was conferred upon the plain-
tiff solely, and where said trusts were in fact
severally revoked by plaintiff, and where the cash



GIFT TAX-Continued.


proceeds of said trusts and the income from the
property were commingled with plaintiff's own
funds, it is held that plaintiff's actions with respect
to the corpus and the income were inconsistent with
the obligations of a trustee relationship. Id.

LXV. Where plaintiff, a Tennessee corporation engaged in
the wholesale hardware business, has failed to
establish to the satisfaction of the Court, by proper
evidence, that it did not pass on the burden of the
amount of the processing tax levied under the
Agricultural Adjustment Act, it is held there can
be no recovery under Section 902 of the Revenue
Act of 1936. C. M. McClung & Co., 275.

See also Informer's Fee.
See Taxes XIV.

92 C. Cls.

I. Where plaintiff, having taken the Civil Service
examination for postmaster, first-class office, and
having been certified by the Civil Service Commis-
sion as first on the list of eligibles, was duly nom-
inated for postmaster by the President, and the
nomination was duly confirmed by the Senate, and
where plaintiff thereupon, in accordance with the
instructions of the Postmaster General, duly exe-
cuted the prescribed bond and oath of office and
returned said bond and oath of office to the Post
Office Department as directed, and where said
bond and oath of office were later returned to
plaintiff marked "Returned for Cancellation,"
and no commission as postmaster was ever issued
to the plaintiff, it is held that the question presented
in the instant case is whether the plaintiff ever
acquired title to the office of postmaster, which
question the Court of Claims has no jurisdiction to
determine. Curran, 66.

II. An action for a salary cannot be maintained when
said salary has been paid to a de facto officer who
discharged the duties of the office. Id.


See Taxes LXII, LXIII.

See Contracts XXXIII.

See Contracts XI.


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