In 1918 the plaintiff by a written contract sold to the General Electric Company his entire business and all the assets used in connection therewith. One Gladney was to receive a port of the purchase price, but this is not material to any question raised herein. Under the contract, a certain -amount was to be paid the plaintiff in cash and the balance in four equal annual installments with interest. No promissory notes or other negotiable instruments were executed. It is agreed that the profit to plaintiff in this transaction was $129,532.52. The Commissioner assessed all of this profit against plaintiff for the year 1918. The plaintiff paid taxes for that year accordingly, filed a claim for refund, -and now brings this suit on the ground that the deferred payments provided for in the contract had no fair market value in that year, and that consequently there was no profit to be assessed until his cost had been returned. The defendant contends that the suit is not based upon a ground stated in the claim for refund and also that the deferred payments provided in the contract of sale had a fair market price or value in 1918 equal to the full amount thereof.
The first question to be determined in this ease is whether plaintiff’s claim for refund presented the same matter as that upon which suit is brought. An examination of the claim shows that it contains some incorrect statements and also that not all of its statements are consistent. This, however, would not prevent recovery thereon if it in some way .or in- some part thereof informed *1015the Commissioner of the claim upon which recovery is now sought. The findings of fact show that in the application for refund it was stated that the contract involved in the case contained “clauses which, if violated 5 * constituted a forfeiture of the payments not yet made by the General Electric Company.” This statement was not correct. The contract was not assignable, and there were certain covenants made therein by the plaintiff, but none of these matters would have afforded ground for a forfeiture. If an assignment was made, it was a mere nullity, and would not affect plaintiff’s rights under the contract. If plaintiff broke the covenants made on his part, it might give rise to a damage suit or a valid counterclaim against the payments to be made by the other party, but would not otherwise affect the payments to he made by the General Electric Company. The matter which seems to he relied upon as apprising the Commissioner of the claim now made was a statement in the application for refund that the “amounts did not constitute income until paid by the General Electric Company”; that it had been so held by the Commissioner with reference to payments made to another party under the contract; and that the claim is “based on such decision.” While this statement is not very clear or definite, we think the Commissioner must have understood that the plaintiff, by the word “amounts,” referred to the payments to be made under the contract, and that ho claimed that these installment payments did not constitute income until received, but this is not the basis of the action set forth in the petition nor is it the claim now made, which is that the obligations of the purchaser for deferred payments had no fair market value in 1918. The petition also contains an allegation that any income to plaintiff out of profit from the sale was accountable for by him either on the installment basis or the deferred payment plan.
It is urged on behalf of defendant that the word “amounts” should bo construed as meaning “deferred payments,” bnt this is just another way of stating that payments were to bo made on the contract by installments. It will be conceded that the Commissioner was duly informed of this fact, bnt we do> not thirik it helps plaintiff’s ease. All that the Commissioner could infer from the confused and indefinite statements of the claim for refund was that plaintiff claimed the computation of the tax was subject to the rules that applied to installment contract cases under section 212 (d) of the Revenue Act of 1926 (26 USCA § 953 (d), and that therefore the Commissioner erred in assessing a tax for the year 1918 upon the total of plaintiff’s profits instead of upon the part of the profits that was realized in that year. This is clearly shown by the fact that plaintiff’s claim concluded with the statement that “it is contended that the profit to he reported in each of the years 1918 to 1923, inclusive, is an follows:
3918......... $46,631.69
1919 ....................... 20,725.20
1920 ........................ 20,725.20
3931 ........................ 20,725.20
1922 ........................ 20,725.20
129,532.49”
On an installment sales basis the computation set out in the application for refund of profits taxable in the years 1918 to 1922 was correct, and nothing was stated about computing the tax on any other basis. There was no mention of the cost of the property, or that the contract could not be assigned, or of the claim now made and upon which the suit must bo maintained, if it can be maintained at all, namely, that no profit was realized until the cost had been returned through the payments, and no allegation that there was no tax whatever due on the sale for the year 1918. Nor was it stated that payments made up to and including that year did not exceed the cost of the property. Instead of alleging that no profit whatever was realized in 1918, it was stated to the contrary that $46,631.69 profit should be reported for that year and the tax computed on the proportion of profit realized for each year thereafter. The Commissioner, as it seems to us, could understand nothing from the refund claim except that plaintiff’s application for refund was based on the claim that the rales with reference to installment sales contracts in accordance with section 212 (d) of the Revenue Act of 1926 should he applied, and that Ms claim was in substance merely that $46,631.69 should be taxed in that year instead of $129,532.52. On this claim the Commissioner correctly decided that, as the initial payment was more than one-fourth of the purchase price, the case did not come within the provisions of the section above referred to, and therefore rejected the claim made on this basis.
We are unable to agree that the statements which wero made in the claim to the effect that there were covenants in the contract which might make the payments forfeitable in any way affect this conclusion. *1016Even if these statements were correct (and in out judgment they were not), the claim as set forth in the application for refund is not in any way based thereon. In so far as it set out any matter that might entitle the plaintiff to a refund, the other statements, if not in actual conflict with the allegations with reference to forfeiture of the payments, at least had no connection therewith and made no reference thereto. If plaintiff recovers at all in this case, he must recover on the ground that the contract, not being assignable, had no market value, and that no profit vwas realized until the cost to plaintiff had first been received, all of which is, in our judgment, an altogether different claim from that set up in the application for refund.
We do not think it necessary to determine whether the Commissioner proceeded correctly, but there are some observations that should be made with reference to the situation when the Commissioner assessed the tax. He held that the tax was all due in the year of the first payment, as shown by finding 3. What the plaintiff proposed was that the tax should be assessed in each year as the payments were received in proportion to-the amount thereof, and this plan would have greatly reduced the amount of the plaintiff’s tax. If the plaintiff had instead suggested the plan which is now proposed in accordance with which all the tax would have been assessed at the time of the last payment, and the Commissioner had acted» thereon, it probably would have made but comparatively little difference in the amount to be paid by him. This may have been one of the reasons why there was no suggestion of anything of the kind in the claim for refund. But, however, this may be, we find that, after the statute of limitations had run against the collection of the tax for the year in which the last payment was made, plaintiff filed his petition and amended petition,, and now claims that the tax should have been assessed under a method which was not proposed by the claim for refund.
We have so often’held' that no recovery can be had where the suit is grounded upon a different claim from the one which was made the basis for the application for refund that we think no citation of-authorities is necessary to sustain this rule. It follows that the petition should be dismissed, and it is so ordered.
BOOTH, Chief Justice, and WHALEY, Judge, concur.