Opinion of the Court 149 C. Cls. Regular Army Reserve on March 20, 1920, and subsequently was discharged on June 4, 1920. Accordingly, the only issue presented is whether plaintiff is entitled, under this set of facts, to the benefits of Section 204, supra. Section 204 provides: Sec. 204. Members of the Navy who first enlisted in the Navy after July 1, 1925, or who reenlisted therein after July 1, 1925, having been out of the Regular Navy for more than three months, may upon their own request be transferred to the Fleet Reserve upon the completion of at least twenty years' active Federal service. After such transfer, except when on active duty, they shall be paid at the annual rate of 22 per centum of the annual base and longevity pay they are receiving at the time of transfer multiplied by the number of years of active Federal service: Provided, That the pay authorized in this section shall be increased 10 per centum for all men who may be credited with extraordinary heroism in the line of duty: Provided further, That the determination of the Secretary of the Navy as to the definition of extraordinary heroism shall be final and conclusive for all purposes: Provided further, That the pay authorized in this section shall not exceed 75 per centum of the activeduty base and longevity pay they were receiving at the time of transfer: Provided further, That all enlisted men transferred to the Fleet Reserve in accordance with the provisions of this section and of sections 1 and 203 of this Act shall, upon completion of thirty years' service, be transferred to the retired list of the Regular Navy, with the pay they were then legally entitled to receive: Provided further, That nothing contained within this section shall be construed to prevent persons who qualify for transfer to the Fleet Reserve under the provisions of section 203 of this Act from being transferred in accordance with the provisions of this section if they so elect: Provided further, That a fractional year of six months or more shall be considered a full year for purposes of this section and section 203 in computing years of active Federal service and base and longevity pay: And provided further, That the provisions of this section shall apply to all persons of the class described herein, heretofore or hereafter transferred to the Fleet Reserve, except that no increase in pay or allowances shall be deemed to have accrued prior to the date of the enactment of this amendment. For the purposes of this section, all active service in the Army of the United States, 274 Opinion of the Court the Navy, the Marine Corps, the Coast Guard, or any component thereof, shall be deemed to be active Federal service [52 Stat. 1178, as amended by the Act of August 10, 1946, 60 Stat. 993]. It is this formula, 212 per centum multiplied by the number of years of active Federal service, which plaintiff contends for. In other words, plaintiff says he should be credited with his years of Army service in addition to his Navy service in arriving at the correct amount of his retired pay. Defendant, aside from its contention that Section 204 is not applicable, says that the Hulse case is distinguishable on the facts. That is to say, Hulse became entitled to retired pay on the completion of 30 years' service under the provisions of the 4th proviso of Section 204 of the 1938 Act, supra. The defendant then argues that plaintiff became entitled to receive pay for physical disability under Section 206 of the 1938 Act. Defendant says that Hulse had 30 years of active Naval service at the time of his retirement and plaintiff in the instant case had only 19 years, 5 months and 25 days of active Naval service at the time of his release to inactive duty on the retired list, following his recall to active duty from the retired list. We can see no realistic distinction between the two cases. Hulse, like the plaintiff, was transferred to the Fleet Naval Reserve under the provision of the Act of 1925. When Congress, in 1938, dissolved the Fleet Naval Reserve and created the new component known as the "Fleet Reserve", Hulse, like plaintiff, became a member of the Fleet Reserve. While it is not spelled out with certainty in the Hulse case, the court must have concluded that since the 1925 Act and Section 203 of the 1938 Act afforded the same rights, Hulse qualified under, and was transferred "in accordance with the provisions of Section 203, which permitted such transfer after 16 years of service ***." Both Hulse and plaintiff were transferred with 16 years or more of service. Therefore, under the logic of the Hulse case, we can see no reason why different treatment should be given plaintiff in this case. Accordingly, under this court's decision in Hulse v. United States, supra, we hold that plaintiff was transferred to the Syllabus 149 C. Cls. Fleet Reserve in accordance with the provisions of Section 203 of the 1938 Act, supra, and therefore is entitled to elect to have his retirement pay computed in accordance with the provisions of Section 204 by reason of the 5th and 7th provisos thereof. Since plaintiff is entitled to the benefits of Section 204, he is entitled to add his years of Army service in computing his years of "active Federal service" and consequently is entitled to the difference in the retired pay received by him from October 1, 1948 to October 1, 1949, the pay to which he is entitled when his retired pay is computed at the rate of 22 percent of his active duty pay multiplied by his years of active Federal service, and judgment will be entered to that effect. Plaintiff's motion for summary judgment is granted and defendant's motion is denied. The exact amount of the judgment will be determined pursuant to Rule 38 (c). It is so ordered. MADDEN, Judge, and WHITAKER, Judge, concur. Jones, Chief Judge, took no part in the consideration and decision of this case. In accordance with the opinion of the court and on a memorandum report of the commissioner as to the amount due thereunder, it was ordered on May 20, 1960, that judgment for the plaintiff be entered for $386.88. SICANOFF VEGETABLE OIL CORPORATION v. THE UNITED STATES [No. 70-59. Decided March 2, 1960. Plaintiff's motion for rehearing overruled May 4, 1960] ON PLAINTIFF'S AND DEFENDANT'S MOTIONS FOR SUMMARY JUDGMENT Taxes, excess profits; claims for refund; limitation of actions.— Plaintiff paid an excess profits tax in 1951. Later in 1951, sec 278 Syllabus tion 501 of the Revenue Act of 1951, 65 Stat. 452, 541, 26 U.S.C. § 430(e) (1952), granted excess profits tax relief retroactively to corporations such as plaintiff, but plaintiff did not claim the relief until much later. In 1954 the Internal Revenue Service decided that plaintiff was a personal holding company subject to personal holding company surtax and thus not liable for the excess profits taxes it had paid in 1951. Plaintiff filed a claim for refund of excess profits taxes for 1951 as it was advised to do by the Internal Revenue Service. As a result of Tax Court litigation on the issue of whether or not plaintiff was a personal holding company for tax purposes, it was decided in 1958 that plaintiff was not, thus making plaintiff again liable for excess profits tax but also eligible for the 1951 excess profits tax relief. In 1958 plaintiff, for the first time, amended its claim for refund to claim the relief afforded by the 1951 amendment to the Internal Revenue Code of 1939. Assuming, without deciding, that the 1954 claim for refund was timely, it is held that the 1958 claim was not a permissible amendment of the 1954 claim because the 1954 claim was based on the ruling of the Commissioner of Internal Revenue that the plaintiff was a personal holding company not subject to excess profits tax, whereas the 1958 so-called amendment to the 1954 claim sought recovery of the excess profits taxes paid in 1951 on the ground that the 1951 relief statute entitled the plaintiff to recover such taxes in the new amount stated in the 1958 claim. It is further held that the 1958 claim was an entirely new claim for refund and was not timely under sections 322(b)(1) and 3772(a)(1) of the Internal Revenue Code of 1939. Petition dismissed. Internal Revenue 2025, 2027 Taxes, excess profits; claims for refund; limitation of actions; amendment to claim-what constitutes.-A purported amendment to a claim for refund of taxes which actually changes the entire basis of the original claim long after the statutory period for filing the claim has elapsed, is not an amendment but is a new claim and will be rejected as untimely. 26 U.S.C. (I.R.C. 1939) §§ 322 (b)(1), 3772(a)(1). Internal Revenue 2025 Taxes, excess profits; claims for refund; limitation of actions; waiver of defects in claims.-The Commissioner of Internal Revenue may, under some circumstances, waive defects in claims for refund, but he may not pay a claim which is actually barred by the statute of limitations applicable to the filing of claims for refund. 26 U.S.C. (I.R.C. 1939) §§ 322(b) (1), 3772(a)(1). Internal Revenue 2029 Opinion of the Court 149 C. Cls. Taxes, excess profits tax; claims for refund; limitation of actions; pending litigation-effect of.-The statute of limitations applicable to the filing of a claim for refund of taxes will not be tolled by the pendency of litigation which has nothing to do with the particular claim. Thus, where the litigation in question had to do with whether or not the plaintiff corporation was a personal holding company for tax purposes and the claim asserted beyond the statutory period involved plaintiff's right to excess profits tax relief under a statute which had been in effect prior to the commencement of the litigation and was applicable to the plaintiff whose position had consistently been that it was not a personal holding company and was therefore subject to excess profits tax, there could be no tolling of the period within which plaintiff's claim for excess profits tax relief must be filed. 26 U.S.C. (I.R.C. 1939) §§ 322 (b) and 3772(a)(1). Internal Revenue 2025 Taxes, excess profits; claims for refund; informal claim—what constitutes. Conversations in 1953 between plaintiff's accountant and an agent of the Internal Revenue Service about the availability of 1951 excess profits tax relief is no substitute for a written claim for refund. Mr. Harold R. Burnstein for the plaintiff. Messrs. John E. Hughes and John W. Hughes were on the briefs. Mr. Eugene Emerson, with whom was Mr. Assistant Attorney General Charles K. Rice, for the defendant. Messrs. James P. Garland, Lyle M. Turner and Philip R. Miller were on the briefs. MADDEN, Judge, delivered the opinion of the court: This is a suit for the recovery of excess profits taxes in the amount of $26,629.86 paid by the plaintiff for its fiscal year which ended on February 28, 1951. The plaintiff did in fact overpay its excess profits taxes in substantially the amount claimed. The Government asserts that the plaintiff cannot recover the overpayment because it failed to file a proper claim for refund within the time specified by the statutes for filing such claims. The plaintiff was incorporated on March 15, 1949. On May 10, 1951, it filed its income and excess profits tax return for the year in question. The return showed $688,313.29 of |