391 Opinion of the Court contemplation of death by the decedent which transfers were untaxed. But the defendant could have made this claim before the Tax Court. We think the defendant is foreclosed from raising it in this court. The doctrine of res judicata operates as a bar to the relitigation of all issues which were raised in a previous suit or which might properly have been raised. Commissioner v. Sunnen, 333 U.S. 591, 597 (1948). On this threshold issue, whether defendant's claim for deficiency on a theory not advanced before the Tax Court can be raised in this suit, the defendant has been forced to navigate its case through rather choppy waters. It has been rather in the position of Ulysses of old. Even if the Scylla of §7(c) could have been avoided, defendant still had to pilot his case so as to avert the equally fatal Charybdis of res judicata. Defendant has not been able to do either. There is a final issue for our consideration. The plaintiffs say they are entitled to interest on the refund that § 7(a) makes available to them. Plaintiffs contend that 63 Stat. 106, 28 U.S.C. § 2411 (a) (1952)1 and 53 Stat. 465, 26 U.S.C. § 3771 (1952)2 of the Intenal Revenue Code of 1939 provides for the allowance of 6 percent interest on tax overpayments. The effect of §7(a) of the Technical Changes Act of 1949 serves to put the plaintiffs in a situation where they have overpaid their tax. The question for decision is whether the sections referred to above can aid the plaintiffs in view of the 1 Section 2411 provides: “(a) In any judgment of any court rendered (whether against the United States, a collector or deputy collector of internal revenue, a former collector or deputy collector, or the personal representative in case of death) for any overpayment in respect of any internal-revenue tax, interest shall be allowed at the rate of 6 per centum per annum upon the amount of the overpayment, from the date of the payment or collection thereof to a date preceding the date of the refund check by not more than thirty days, such date to be determined by the Commissioner of Internal Revenue. * * Section 8771 provides: "Interest on Overpayments. "(a) Rate.-Interest shall be allowed and paid upon any overpayment in respect of any internal revenue tax at the rate of 6 per centum per annum. "(b) Period.-Such interest shall be allowed and paid as follows: “(2) Refunds.—In the case of a refund, from the date of the overpayment to a date preceding the date of the refund check by not more than thirty days, such date to be determined by the Commissioner, whether or not such refund check is accepted by the taxpayer after tender of such check to the taxpayer. The acceptance of such check shall be without prejudice to any right of the taxpayer to claim any additional overpayment and interest thereon." Opinion of the Court 152 Ct. Cl. specific limitation of § 7(b) of the Technical Changes Act, 63 Stat. 896, which provides: ** No interest shall be allowed or paid on any overpayment resulting from the application of subsection (a) with respect to any payment made prior to the date of the enactment of this Act. The plaintiffs predicate their claim for interest on two cases: Carter v. Liquid Carbonic Pacific Corp., 97 F. 2d 1 (9th Cir. 1938); General Motors Corp., Frigidaire Division v. United States, 142 Ct. Cl. 890 (1956). In both of those cases, however, the statutory restriction on the payment of interest was less inclusive than that of § 7(b). The Carter case was a suit by a taxpayer for refund of a wrongful assessment by the Government of excise taxes. The specific statutory provision in Carter on which the taxpayer founded his claim for refund contained a provision that "in no case shall interest be allowed with respect to any amount of tax under this title credited or refunded." The Court of Appeals for the Ninth Circuit indicated that the provision did not apply when a claim for refund was rejected by the Commissioner and suit had to be brought to obtain it. In General Motors Corp., Frigidaire Division v. United States, 142 Ct. Cl. 890 (1956), this court granted a refund to a taxpayer pursuant to 26 U.S.C. § 3443 (a) (2), 53 Stat. 417. Subsection (c) of that provision provided that "no interest shall be allowed with respect to any amount of tax credited or refunded under the provisions of subsection (a) hereof." We held that the plaintiff was entitled to interest pursuant to § 2411(a). Relying upon the Carter case, we said that the statutory phrase "credited or refunded" referred to administrative refunds. We held that the prohibition as to interest of § 3443 (c) did not apply to a refund obtained by a judicial determination. Revenue Act of 1932, 47 Stat. 268 cited in Carter v. Liquid Carbonic Pacific Corp., 97 F. 2d 1, 5 (9th Cir. 1938). This opinion was vacated by order of the court on March 6, 1957. 142 Ct. Cl. 893. See 5 Internal Revenue Code of 1939, 53 Stat. 417, cited in General Motors Corp., Frigidaire Division v. United States, 142 Ct. Cl. 890, 892 (1956). 391 Opinion of the Court We do not believe that the language of § 7(b), which forbids interest on "any overpayment," is susceptible to the creation of a distinction which would make the payment of interest dependent on whether the refund for overpayment was granted administratively or obtained by way of judgment. In a case involving § 7(b), In re Estate of Cardeza v. United States, 261 F. 2d 423 (1958), the United States Court of Appeals for the Third Circuit interpreted this language precisely as it was written and held that on a recovery pursuant to § 7(a) of the Technical Changes Act of 1949 the taxpayer was not entitled to interest. The Court of Appeals for the Third Circuit said at p. 428: 6 Although it is Section 7(a) under which taxpayer seeks to obtain its refund, it contends that Section 7(b) was merely intended to restrict the right to interest on refunds allowed by the Commissioner of Internal Revenue and not to prohibit interest on judgments obtained following denials of refunds. The short answer to taxpayer's contention is to be found in Section 7(b) itself, for no limitation upon the clear, all-inclusive language is contained therein. We agree with the view of the Court of Appeals for the Third Circuit in In Re Estate of Cardeza v. United States, supra, with respect to the question of interest. We think 87(b) is conclusive as to the point that no interest can be awarded on a refund authorized by § 7(a). In conclusion, we hold that the plaintiffs as executors of the Estate of William F. Wall, deceased, are entitled to a refund of the estate taxes assessed against them in the amount of $76,993.77, and the interest which they paid on that principal amount, $12,934.95, a total of $89,928.72. They are not entitled, however, to any interest on this total. Plaintiffs' motion for summary judgment is therefore granted in part and denied in part. "We note that in Cardesa the taxpayer sought to base its claim for interest on the same two cases on which the taxpayer relies here: Carter v. Liquid Carbonic Pacific Corp., 97 F. 2d 1 (9th Cir. 1938); General Motors Corp., Frigidaire Division v. United States, 142 Ct. Cl. 890 (1956). That court found them inapplicable, as we do. Syllabus 152 Ct. Cl. Judgment for the plaintiffs will be entered in the sum of $89,928.72. It is so ordered. DURFEE, Judge; LARAMORE, Judge, and MADDEN, Judge, concur. WHITAKER, Judge, concurring: I agree that defendant is barred by the rule of res judicata from now asserting its contention that plaintiffs did not include within the gross estate of the decedent certain transfers alleged to have been made in contemplation of death; but I have grave doubt about the assertion that §7(c) of the Technical Changes Act of 1949 prevents it from doing so. TOLERTON & WARFIELD COMPANY v. THE UNITED STATES [No. 284-58. Decided January 18, 1961] ON PLAINTIFF'S AND DEFENDANT'S MOTIONS FOR SUMMARY JUDGMENT Taxes, excess profits; limitation of actions; account stated.-In an action by plaintiff to recover alleged overpayments of excess profits taxes where plaintiff's claim for refund was denied on March 22, 1950, and its offer of settlement was accepted by the Commissioner of Internal Revenue on March 31, 1952, it is held that the acceptance by the Commissioner of the offer of settlement more than two years after the disallowance of plaintiff's claim for refund did not have the effect of suspending the statute of limitations, § 3772 (a) (2) of the Internal Revenue Code of 1939, because suit was not begun by the taxpayer within two years of the disallowance of the claim, nor did the taxpayer and the Commissioner agree in writing to suspend the running of the statute within such period of limitations. 26 U.S.C. § 3774. Petition dismissed. Taxes; claims for refund; limitations of actions.-No court may entertain a suit for the refund of an internal revenue tax until a claim for such tax refund has been filed and no claim may be entertained which is filed more than two years after the date of the mailing by registered mail by the Commissioner of Internal Revenue of a notice of disallowance of the claim. Section 402 Opinion of the Court 3772(a) (1) and (2) of the Internal Revenue Code of 1939. The period within which suit must be brought will not be extended by any action by the Commissioner on the claim after the mailing of the notice. Section 3772(a) (3). Internal Revenue 2024, 2066.1 Taxes; claims for refund; limitation of actions; refunds after period of limitations.-An offer of settlement accepted by the Commissioner of Internal Revenue more than two years after the sending of notice of disallowance of a claim for refund must be deemed erroneous and will not suspend the running of the statute of limitations unless suit was brought by the taxpayer within the two years of the notice of disallowance of the claim unless within such period the taxpayer and the Commissioner agreed in writing to suspend the running of the statute of limitations for the filing of suit from the date of the agreement to the date of final decision in one or more named cases pending in the courts. 26 U.S.C. § 3774. Taxes; claims for refund; limitation of actions; refunds after period of limitations; account stated.-Where the Commissioner of Internal Revenue's acceptance of a taxpayer's offer of settlement is erroneous and invalid under the provisions of the Internal Revenue Code, no promise to pay the taxpayer in accordance with that agreement can arise because the Commissioner was without authority to pay. Accordingly, no account stated resulted. Internal Revenue 1764, 2042 Jack R. Miller for plaintiff. Earl L. Huntington, with whom was Assistant Attorney General Charles K. Rice, for defendant. James P. Garland and Lyle M. Turner were on the briefs. WHITAKER, Judge, delivered the opinion of the court: This case is before the court on defendant's motion for summary judgment, based upon the allegation that the claim is barred by the statute of limitations. Defendant's motion must be granted, and plaintiff's petition must be dismissed, notwithstanding the fact that it would appear that plaintiff has overpaid its taxes. That plaintiff's claim is barred will be shown by the following statement of facts: The year involved is the year 1945. On October 1, 1947, plaintiff filed an amended excess profits and declared value excess profits tax return showing liability of $11,029.50, and, later, on December 27 of the same year, it |