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BUSHMIAER v. UNITED STATES

May 27, 1955

W. S. BUSHMIAER AND RUSSELL L. MYERS, CO-EXECUTORS OF THE ESTATE OF J. W. MYERS, DECEASED, PLAINTIFFS,
v.
UNITED STATES OF AMERICA, DEFENDANT.



The opinion of the court was delivered by: John E. Miller, District Judge.

For decision is the motion filed by the defendant on May 16, 1955, to dismiss the complaint of plaintiffs.

The complaint was filed March 15, 1955. Plaintiffs are the co-executors of the estate of J. W. Myers, deceased, and are citizens of the State of Arkansas and reside in the Fort Smith Division of the Western District. Jurisdiction is invoked on the ground that the action arises under the laws of the United States pertaining to the internal revenue.

Paragraphs 3, 4, 5 and 6 of the complaint are as follows:

"3.

"After having determined, as is recorded by a registered deficiency notice dated October 1, 1954, that the Estate of J. W. Myers, deceased, allegedly owed additional income taxes for the years 1942 and 1943, agents of the defendant made an assessment on or about November 23, 1954 of the additional tax asserted in the deficiency notice against the said Estate.

"4.

'On or about December 16, 1954, the Estate of J. W. Myers, deceased, by its checks numbered 861 and 862 made payments of $2,500.00 in partial satisfaction of the assessed tax liability for each of the years 1942 and 1943.

"5.

"On or about December 20, 1954, claims for refund, on Treasury Form 843, for the $2,500.00 of incomes taxes paid for each of the years 1942 and 1943 were duly filed with agents of the defendant by the Estate of J. W. Myers, deceased.

"6.

"A registered notice of disallowance of the claims for refund referred to in Paragraph 5 hereof was mailed to the Estate of J. W. Myers, deceased, on or about March 9, 1955 and no part of the additional taxes paid for 1942 and 1943 has been refunded to the Estate."

In Paragraph 8 of Count I it is alleged that the defendant illegally and erroneously determined and assessed the additional income tax liability asserted for 1942 against the estate of J. W. Myers, deceased, and illegally and erroneously collected $2,500 of taxes paid by the estate for that year.

Paragraph 10 of Count II of the complaint is identical with Paragraph 8 of Count I except it deals with the tax liability for the year 1943.

Plaintiffs pray that they recover a total of $5,000 being claims for refund for $2,500 of income taxes paid for each of the years 1942 and 1943. The defendant states ...


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