25 Findings of Fact penses. As to indirect expenses, including the operation of its overhead allocable to the Navy contracts, Willamette was reimbursed by the joint venture but Atkinson was neither reimbursed nor did it bill the joint venture for these expenses, except for the claim presented in this action. 17. a. Under the laws of the State of Oregon "every mercantile, manufacturing and business corporation doing or authorized to do business within this State shall annually pay to the State*** for the privilege of carrying on or doing of business by it within this State, an excise tax according to or measured by its net income ***" **" (Oregon Compiled Laws, Ann., Sec. 110-1506.) During the period here involved the excise tax, under the statute, was to be computed at the rate of 8% upon the basis of a corporation's net income for each year prior to and including 1943, and at the rate of 5% upon the basis of its net income for the year 1944 and for each year thereafter; each corporation being entitled to an offset against the tax in the amount of taxes assessed to and paid by the corporation upon its personal property located in the State, the offset, however, not to exceed 50% of the excise tax. b. Willamette and Atkinson paid said taxes individually, based upon net income derived by each from the profits of the joint venture. The following table indicates the taxes paid by Atkinson by reason of profits earned by it under the named contracts: 18. At all times prior to 1945, the Navy ruled that such a tax (i. e., The Oregon Excise Tax) was in the nature of an income tax, and not a reimbursable item, and all contracts ex Findings of Fact 131 C. Cls. cept NObs-2115 were executed by Willamette in the belief that the tax was not recoverable. Neither Willamette nor Atkinson made any attempt to recoup the tax paid for the years 1941-44, acquiescing in the Navy's position. On January 12, 1945, the Navy changed its ruling, and notified Willamette that the tax would be regarded as a reimbursable item. Willamette thereupon filed a claim for such excise taxes it had paid and was reimbursed therefor. 19. a. On July 27, 1945, plaintiff requested a ruling as to the reimbursability of the Oregon excise tax paid by Atkinson. On August 20, 1945, plaintiff was notified that the item was not regarded as reimbursable, and, on January 2, 1946, plaintiff received a formal notice of disallowance. Its tax claim then amounted to $42,178.96. On February 20, 1946, plaintiff appealed to the Bureau of Supplies and Accounts from the decision of the Cost Inspector. On August 22, 1946, the Bureau of Supplies and Accounts forwarded its ruling denying the claim, in which it found: a. All of the subject contracts are between the Navy Department and the Willamette Iron & Steel Company-the Guy F. Atkinson Company is not a party to such contracts. b. The tax in question is legally a liability of the Guy F. Atkinson Company for the privilege of doing business. c. There is no provision in the contracts nor in the cost determination principles specified therein (that is, TD 5000 and the Explanation of Principles For Determination of Costs Under Government Contracts) under which the Navy Department is obligated to pay taxes for the privilege of doing business of a company which is neither a party to the contract nor performing part of the contract work under an approved cost type subcontract. b. On September 17, 1946, plaintiff appealed from the foregoing decision to the Secretary of the Navy. c. On November 4, 1946, plaintiff received notice of disallowance of similar taxes in the amount of $10,653.99, covering Oregon excise taxes paid by Atkinson for the year 1945, from which plaintiff appealed on December 3, 1946. At the request of Willamette the claims for $42,178.96 and $10,653.99 were considered jointly by the Board of Contract Appeals 25 Syllabus and the claims were denied by an opinion dated March 24, 1949, concurred in by the Secretary of the Navy on March 26, 1949. 20. The Board of Contract Appeals in denying plaintiff's claim found: *** On all the evidence the Board is of the opinion that the contracts were executed by Appellant [Willamette] in its individual corporate capacity, and that Guy F. Atkinson Company did not become a party to the contracts, either as a disclosed or undisclosed principal. 21. Willamette reimbursed Atkinson for the excise tax paid by said company, but in 1948 charged this payment against the investment account of Atkinson, thereby nullifying its previous reimbursement. The recovery in this case by plaintiff will be paid by it to Atkinson. CONCLUSION OF LAW Upon the foregoing findings of fact, which are made a part of the judgment herein, the court concludes that as a matter of law the plaintiff is entitled to recover, and it is adjudged and ordered that it recover of and from the United States the sum of fifty-two thousand eight hundred thirty-two dollars and ninety-five cents ($52,832.95). DEWEY PORTLAND CEMENT COMPANY, A CORPORATION, v. THE UNITED STATES [No. 523-53. Decided February 8, 1955.] On Plaintiff's and Defendant's Motions For Summary Judgment Income tax; interest on overpayments; overpayment credited against deficiency; date of assessment of deficiency.-In the instant case, the plaintiff, on July 23, 1946, filed a waiver of restrictions on assessment and collection of the income tax deficiencies for 1942 through 1945, and on November 22, 1946, the Commissioner of Internal Revenue assessed the tax deficiencies with interest computed to August 22, 1946, thirty days after the filing of the waiver. On November 7, 1947, the Commissioner signed the overassessment schedule and issued certificates of overassessment for 1942 and 1943, with interest thereon, Opinion of the Court 131 C. Cls. part of which was creditted against the deficiencies and interest. It is held that interest on the overpayment stopped accruing on November 22, 1946, not on August 22, 1946. Judgment for plaintiff. Internal Revenue 2201 Mr. G. Lee Burns for plaintiff. Messrs. Stinson, Mag, Thomson, McEvers & Fizzell were on the briefs. Mr. Girard R. Jetton, Jr., with whom was Mr. Assistant Attorney General H. Brian Holland, for defendant. Messrs. Andrew D. Sharpe and Andrew F. Oehmann, were on the briefs. LITTLETON, Judge, delivered the opinion of the court: The plaintiff corporation sues to recover interest. This case is before us on cross-motions for summary judgment. The facts necessary to the decision can be briefly stated. The plaintiff filed its tax returns on a calendar-year basis. On April 17, 1945, the plaintiff filed a claim for refund of excess profits tax for the year 1942, on the ground that there should be included in its unused excess profits credit adjustment for 1942 an unused excess profits credit for 1944. On November 21, 1946, the plaintiff amended its claim for refund to claim a different sum. On March 8, 1946, the plaintiff filed a claim for refund of excess profits tax for 1943, on the ground that there should be included in its unused excess profits credit adjustment for 1943 an unused excess profits credit for 1945. The Commissioner of Internal Revenue, after various adjustments, proposed an assessment for income tax deficiencies for the years 1942, 1943, 1944 and 1945. On July 23, 1946, the plaintiff, pursuant to section 272 (d) of the Internal Revenue Code, filed a Waiver of Restrictions on Assessment and Collection of the income tax deficiencies in the amount of $340,174.54. On November 22, 1946, the Commissioner assessed the income tax deficiencies in the amount of $340,174.54, with interest thereon in the amount of $20,510.88. The interest on the deficiencies was computed to August 22, 1946, 30 days after the filing of the waiver of restrictions. The amount of the income tax deficiencies and interest thereon are not in dispute. On November 7, 1947, the Commissioner, after various adjustments, signed the overassessment schedule and issued 41 Opinion of the Court certificates of overassessments for the years 1942 and 1943 in the amounts of $368,655.66 and $361,856.10, respectively, with interest thereon in the amount of $60,638.26. The parties are in agreement as to the correctness of the amount of the principal. The part of the interest computation in dispute is set forth below.1 The Commissioner, pursuant to section 3770 (a) (4), credited the necessary amount of the overpayment against the deficiencies and interest thereon to eliminate the latter two and then refunded the difference. The parties agree that the filing of the section 272 (d) Waiver of Restrictions on Assessment and Collection stopped the accrual of interest on the deficiencies pursuant to section 292 (a), on August 22, 1946, which was the thirtieth day after the filing of the waiver. The only question presented is the date the interest stopped accruing on the amount of the overpayment that was credited against the deficiencies and interest thereon. The defendant contends that the interest stopped accruing on August 22, 1946, the date that it stopped on the deficiencies. The plaintiff contends that the interest stopped accruing on November 22, 1946, the date of the assessment of the deficiencies. This issue has already been decided in favor of the taxpayer. Interest runs on that part of the overpayment until the date of the assessment of the deficiencies against which it is credited; Virginia Electric and Power Co. v. United States, No. 37-52 (decided November 30, 1954), 130 C. Cls. 189; Ash Grove Lime & Portland Cement Co. v. United 1 The Commissioner computed and allowed interest under the waiver as follows: The plaintiff contends that interest on the foregoing amounts should have been computed and allowed under the Statute as follows: |