The mere reading of the facts in this case shows beyond even a reasonable doubt that the position of the Commissioner of Internal Revenue in denying a refund to the plaintiff cannot be maintained in any court of law or equity. The arbitrary refusal to make a refund to one spouse merely because collection cannot be made of a deficiency from the other spouse is unlawful and inequitable. The -recitation of the facts or the citation of authorities we feel is superfluous. A quotation from the case of United States ex rel. Girard Trust Co. v. Helvering, 66 App.D.C. 64, 85 F.(2d) 230, 232, is appropriate here: “When the United States is properly a party in litigation in its own courts, it occupies no different or better position than the humblest citizen. Overreaching on its part should be no more condoned than if practiced by an individual. We have said as much before.”
The plaintiff is entitled to recover the amount sued for with interest according to law. It is so ordered.
BOOTH, Chief Justice, and WILLIAMS and GREEN, Judges, concur. LITTLETON, Judge, dissents.