TAXATION-INCOME TAX-REFUND FOR OVERPAYMENT-EQUITARLE DEFENSE BY GOVERNMENT WHEN COLLECTION OF DEFICIENCY BARRED BY LIMITATIONS

Petitioner\u27s deceased sold stock under an installment contract and made a large profit thereon. The deceased died in 1928. Under Sections 44 (d) and 113 of the Revenue Act of 1928 the executor made an underpayment for 1928, and overpayments for 1929, 1930, and 1931. The amount of the 1928 deficiency exceeded the aggregate of the overpayments for the three subsequent years. Petitioner filed a claim for refund of the overpayments. The government was barred by limitations from recovering the tax deficiency for 1928. Held, the petitioner was entitled to recover the overpayments. The government could not assert the unpaid tax liability for 1928 tolled by the statute of limitations as an equitable defense in light of Sections 607 and 609 (a) of the Revenue Act of 1928, and there were no circumstances creating an estoppel against the taxpayer. McEachern v. Rose, 302 U.S. 56, 58 S. Ct. 84 (1937)