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:
"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.
'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.
"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.
"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.