(dissenting).
I think the defendant’s position is correct. A credit for State inheritance taxes is allowable only when the estate has established that such taxes have been paid and when claim has been filed therefor within the time prescribed by statute. The New York taxes were not paid until after the controversy over the net taxable estate had been settled with the Commissioner through the Tax Court. Therefore at the time the Tax Court made its determination, after giving effect to the reduction in the net estate of $133,874.60, there was a deficiency in the amount of the estate tax as determined by the Tax Court of $94,123.-79. When thereafter proof of payment' of the New York taxes was presented, a refund of overpayment for the first time became allowable. It became allowable solely because plaintiffs then became entitled to the credit for New York taxes. Previously there was a deficiency due; the allowance of the claim for credit extinguished the deficiency and entitled the plaintiffs to a refund of the balance.
In essence plaintiffs’ argument seems to proceed on the theory that the credit for New York taxes must be considered as having been allowable from the (beginning and that since the only adjustment made other than the adjustment in the amount of the claimed credit was a reduction in the net value of the estate, the overpayment was based on such reduction. The fallacy in this argument is that the credit was not allowable until the taxes were paid and proof thereof furnished to the Commissioner, which did not occur until after the determination by the Tax Court. When the return was filed, a tax liability was shown of $772,168.32 and a credit claimed of $146,793.82, which reduced the tax then payable to $625,374.50, which amount plaintiffs paid. However, the credit claimed was not then allowable. The regulations merely permitted plaintiffs to file a claim for credit “of an estimated amount of any such taxes for which the estate will ultimately be entitled to a credit,” and that was what plaintiffs did. The New York taxes had not then been paid and proof furnished of the payment, nor had that occurred when the Commissioner audited the return and when the matter was before the Tax Court. The claim for credit did not become allowable until after the entry of the order of determination by the Tax Court.
After giving effect to the reduction in the net value of the estate which was agreed upon in the proceedings before the Tax Court, a tax liability of $719,498.29 was shown. Since the taxpayer had paid $625,374.50, there was then a deficiency as found by that court of $94,123.79. While the Tax Court recognized the potentiality of the allowance of the credit, that court also recognized, as it had to do, that the credit was not then allowable for the primary reason that the New York taxes had not been paid. When such taxes were paid and proof thereof presented an overpayment resulted. That overpayment was clearly based on the allowance of the credit for the New York taxes.
*236I can perceive no inequity to plaintiffs in the refusal to allow interest on such an overpayment for the reason that throughout the entire proceedings, by virtue of the grant of a privilege to -claim the credit, plaintiffs were not required to make payment of the amount that would otherwise have been payable save for the credit, and that when the final determination was made by the Tax Court the deficiency and interest thereon were both extinguished and plaintiffs were merely given a refund of the excess remaining.
The cases of Pearson v. United States, 17 F.Supp. 527, 83 Ct. Cl. 624, and Morgan v. United States, 18 F.Supp. 1017, 85 Ct.Cl. 138, relied on by plaintiffs, involved entirely different statutory provisions 'under the Revenue Act of 1926 and can not in any sense be considered as controlling under the circumstances and under the statute with which we are concerned. Those cases had to do with a situation which arose under the Revenue Act of 1926 which made a retroactive reduction in estate tax returns in the case of estate taxes paid under the Revenue Act of 1924, and provided further that any excess of the tax should be refunded without interest. In denying recovery, the court made a comparison between the correct tax liability under the two acts which showed that when the correct tax liability was computed under the 1924 act it exceeded that computed under the 1926 act by the amount of the -overpayments, and therefore no interest was allowable under the prohibition in that statute. The prohibition against allowing interest when refund was due to the credit of State inheritance and legacy taxes with which we are here concerned was not then a part of the law.
The conclusion which I -have reached in this case is the same as that reached by the United States District Court for the Southern District of New York under the same statute with which we are concerned and under analogous facts in the case of Guaranty Trust Company of New York v. United States, 95 F.Supp. 776.
I would dismiss the petition.