Harry M. Stevens, Inc. v. James W. Johnson, Former Collector of Internal Revenue for the Third District of New York

HINCKS, Circuit Judge. ;

A Collector of Internal Revenue appeals from a summary judgment in favor of the plaintiff taxpayer in its action to recover that part of a surtax on “undistributed section 102 net income” which had allegedly been erroneously assessed under § 102 of the 1939 Code, 1 and thereafter collected.

The facts are not in dispute. In 1945 the taxpayer, whose accounts throughout had been kept on cash receipts and disbursement basis, incurred federal income tax liabilities of $142,660.64 and paid this sum in 1946. Its income tax liability for 1946 was $726,036.46 and this was paid…