Opinion of the Court 95 C. Cls. Some time after the construction of the two buildings referred to above such improvements as new roofing, the cutting of additional doors and windows, and the addition of a toilet and bath for general use were made in the buildings, the cost of which was paid by the defendant. (2) During the period from December 14, 1934, to March 25, 1938, plaintiff was furnished by defendant, and occupied as quarters in the various camps at which he was stationed, a single room about ten by twelve feet in size. He occupied the room alone, but the toilet and bathing facilities for general use were shared with other officer personnel (usually three officers and an educational advisor) stationed at the camp. (3) At no time during the period of the claim were adequate quarters as provided by law furnished for plaintiff and his dependent, and such adequate government quarters were not available. The shelter and room occupied by plaintiff did not constitute adequate quarters provided by law for an officer of his rank with or without a dependent. There was no determination by competent superior authority of the service concerned that a lesser number of rooms than the number of rooms provided by law would be adequate for the occupancy of plaintiff and his dependent mother. 10. During the period of the claim involved, plaintiff's mother was in fact dependent upon him for her chief support. The court decided that the plaintiff was entitled to recover. LITTLETON, Judge, delivered the opinion of the court: The first question in this case is whether plaintiff's mother was in fact dependent upon him for her chief support within the meaning of section 4 of the Act of June 10, 1922, 42 Stat. 625, as amended by the Act of May 31, 1924, 43 Stat. 250. This issue arises by reason of renewal by counsel for defendant of the contention made and overruled in prior cases that if defendant's mother had pursued a different business policy in connection with the property she owned, or in which she had an interest, by selling certain properties and making expensive repairs to or remodeling other property in which 531 Opinion of the Court she only had an undivided interest she might have been able to derive a monthly income which, if she had been able to collect, would have been sufficient to take care of most, if not all, of her reasonable and necessary living expenses. The properties which plaintiff's mother owned, or in which she had an interest, and the value thereof are described and set forth in findings 3 to 6, inclusive. The proof shows that prior to the depression and the economical conditions existing thereafter, insofar as they affected property of the type described, the properties yielded an income which was sufficient for the support of plaintiff's mother, but that in recent years and during the periods of the claim here involved great difficulty was experienced both in renting the property and in collecting rents. The proof further shows that none of the real property in which plaintiff's mother had an interest could have been sold advantageously without incurring financial sacrifices. Moreover, plaintiff's mother only owned an undivided interest in most of the real property; and the defendant's contention, in connection with which it introduced some testimony that if plaintiff's mother or the plaintiff, who looked after the interests of his mother, had pursued a different business policy in selling some of the properties and in remodeling, repairing, and improving the others, such policy would have produced the asserted theoretical results, does not carry much force. The proof does not show and there is no contention that the properties in which plaintiff's mother had an interest were deliberately handled by the mother, or by plaintiff as her representative, in such a way as to show her dependency upon plaintiff for her chief support. They did the best they could with the properties as they were handled and managed. The statute does not require that the officer's mother exercise the highest degree of skill in handling or administering her property interests, and the court will not inquire into the matter. Nor will the court, in determining the fact as to whether, during the periods involved, the mother was dependent upon her son for her chief support, base its decision of this fact upon what some real-estate dealer might think he could have done with the property as a whole in the way of increas Opinion of the Court 95 C. Cls. ing the income therefrom by decreasing the property and investing the proceeds in improvement of the balance. This would be only conjectural and no comparable instance where such a policy was successfully carried out is proven. Tomlinson v. United States, 66 C. Cls. 697; Bradley v. United States, 74 C. Cls. 521; Freeland v. United States, 74 C. Cls. 471, 476, 477; Updegraff v. United States, 75 C. Cls. 508, 532. The proof shows that during the years 1933 to 1935, inclusive, the total income received from the property interests of plaintiff's mother was from $100 to $150 a year less than the amounts expended and necessary to be expended thereon for upkeep, repairs, taxes, and interest, and that during the years 1936 to 1938, inclusive, the net income received by plaintiff's mother from her interests in the properties was $50 or less a year. Prior to 1933 plaintiff made regular contributions to his mother which constituted her chief support and since October 8, 1933, the beginning of the periods involved in this suit, plaintiff has regularly contributed at least $100 a month to his mother for her support, which contributions were her sole source of income, except for the small income she at times received during the years 1936, 1937, and 1938 from her property interests as above stated. It is clear from the facts and circumstances described by the record that she was in fact dependent upon plaintiff for her chief support within the meaning of the applicable statutes. The next question is whether plaintiff is entitled to recover the full statutory allowance authorized by law for an officer of his rank in lieu of government quarters adequate for himself and his dependent mother. No adequate government quarters for himself and his mother were furnished or were available. But defendant contends that since the plaintiff while assigned to active duty with the Civilian Conservation Corps occupied quarters of the sort described in finding 9 there should for that reason be deducted from the fixed statutory allowance in lieu of quarters for an officer of plaintiff's rank with a dependent the amount of $981.93 less $85 expended by plaintiff in connection with the shelter occupied by him as set forth in finding 9 (1) and judgment entered in his favor for only $3,029.41 if it is found that his mother was 531 Syllabus dependent upon him for her chief support during the periods involved. The record shows that plaintiff was not furnished quarters adequate for himself and his dependent mother, or adequate quarters for an officer of his rank without a dependent, and that the total of the statutory allowances in lieu of such quarters during the periods of the claim is $3,926.34. (See finding 9.) We are of opinion that plaintiff is therefore entitled to recover this amount in full without any deduction. Judgment will therefore be entered in favor of plaintiff for $3,926.34. It is so ordered. MADDEN, Judge; JONES, Judge; and WHITAKER, Judge, concur. WHALEY, Chief Justice, concurring: I concur in the result reached by the majority opinion. The findings show that at no time during the period involved did the plaintiff receive from the Government facilities that could be calied quarters in any proper sense, even for himself alone. Part of the time he supplied the room he occupied, and at best his room was in general use by other officer personnel, four in number. Plaintiff was consequently deprived of the allowance to which he was entitled and should be reimbursed therefor in the full amount granted him by the law. JOSEPHINE V. HALL v. THE UNITED STATES [No. 44924. Decided February 2, 1942] * On the Proofs Income tax; depreciation; amortization; recoupment.—Where under the will of decedent, the trustees of the estate, of which plaintiff was a beneficiary, and which consisted of leaseholds and other property, distributed to the beneficiaries, including plaintiff, the net income without deduction for depreciation, obsolescence, or amortization; and where in 1932 the trustees, in accordance with a trust provision conferring such discretion, sold said leaseholds and distributed to the then beneficiaries • Certiorari denied April 6, 1942. Reporter's Statement of the Case 95 C. Cls the entire assets, including undistributed income and authority to receive future payments on the sale of said leaseholds; and where in computing for tax purposes the profits from said sale in 1832 the Commissioner of Internal Revenue reduced the 1913 basis of value by the amount of the depreciation on the buildings and amortization of the leases from March 1, 1913, to the date of sale; and where depreciation and amortization had not been allowed in assessing income taxes for the years prior to 1929; it is held that under the provisions of the Revenue Acts of 1928 and 1932 such deductions were properly considered in computing gains on the sale made in 1932 and the Commissioner properly so held. Same. It is held that plaintiff is not entitled, under the common law doctrine of recoupment, to recoup alleged overpayment of income taxes for the years prior to 1929, during which depreciation was not allowed, against income taxes for the years 1932 to 1335, inclusive, during which depreciation on the property for the years prior to 1929 was considered in fixing the basis of value on the leasehold property which was held in 1932. Bull, Executor, v. United States, 295 U. S. 247, distinguished. Same. Where plaintiff did not at any time file a claim for refund of alleged overpayment of taxes for the years prior to 1929, and where plaintiff under the statutes had the privilege of filing such claim and in case of rejection to file timely suit therefor; and where if plaintiff had the right to an allowance for depreciation in said years such right could have been established; it is held that under sections 608 and 609 of the Revenue Act of 1928 plaintiff is not entitled to recover by way of recoupment. Same. If the right to a refund could not have been established under the statutes in effect prior to 1929, plaintiff cannot properly claim recoupment later. Same.-Limitation statutes are enacted for the benefit of the taxpayer as well as the Government. The Reporter's statement of the case: Mr. Robert Ash for the plaintiff. Messrs. Mitchell & Van Winkle were on the briefs. Mr. John A. Rees, with whom was Mr. Assistant Attorney General Samuel O. Clark, Jr., for the defendant. Messrs. Robert N. Anderson and Fred K. Dyar were on the brief. The court made special findings of fact as follows: 1. Plaintiff is a citizen of the United States and a resident of New York City. |