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Findings of Fact tiff for federal income taxes paid in 1953 in computing its subchapter A net income was reduced by the Commissioner of Internal Revenue from $17,257.70 to the sum of $6,795.93.

15. During the year 1953 the plaintiff realized certain net long-term capital gains. The amount of its normal tax and surtax for that year, computed under $$ 13 and 15 of the Internal Revenue Code of 1939, as adjusted on audit by the Commissioner of Internal Revenue, was $2,607.89, and the alternative tax computed under § 117(c) of the Internal Revenue Code of 1939 for the year 1953 amounted to the sum of $6,400.17. Plaintiff, in filing its U.S. Corporation Income Tax Return, Form 1120, for the year 1953, reported as its income tax liability for that year the alternative tax of $6,400.17, which it subsequently paid to the District Director of Internal Revenue, 210 Livingston Street, Brooklyn, New York.

16. Upon audit of plaintiff's 1953 U.S. Corporation Income Tax Return and 1953 U.S. Return of Personal Holding Company Income, the sum of $3,792.28, representing the difference between the alternative tax of $6,400.17 and the normal tax and surtax liability of $2,607.89, was treated by the Commissioner of Internal Revenue as an overpayment of plaintiff's normal tax and surtax. Thereafter, by reason of the partial disallowance of the deduction of $17,257.70 for Federal income taxes, the Commissioner of Internal Revenue assessed an additional personal holding company tax against plaintiff for the year 1953 in the amount of $12,564.11 and he applied against such additional assessment the asserted overpayment of $3,792.28, thus asserting a net deficiency of $8,771.83 for the year 1953.

17. This net assessment of $8,771.83, together with the sum of $810.17, representing net interest of $880.95, less an uncontested net adjustment of $70.78 applicable to the year 1952, making a total of $9,582.00, was paid by plaintiff to the District Director of Internal Revenue, Brooklyn, New York, on March 14, 1956.

18. Plaintiff filed a timely claim for refund on March 19, 1957, with the District Director of Internal Revenue, Brooklyn, New York, in the amount of $9,582.00 with interest thereon. No formal disallowance of this claim for refund

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149 C. CLS. Conclusion of Law has been made by the Commissioner of Internal Revenue and more than six months have elapsed since the claim for refund was filed.

CONCLUSION OF LAW Upon the foregoing findings of fact, which are made a part of the judgment herein, the court concludes as a matter of law that plaintiff is entitled to recover, and it is therefore adjudged and ordered that plaintiff recover of and from the United States the sum of twenty-seven thousand four hundred forty-eight dollars and twenty-one cents ($27,448.21), with interest as provided by law.

ORDERS

FEBRUARY 1, 1960, TO MAY 31, 1960

No. 576–57. FEBRUARY 3, 1960

Fred Leiner.

Civilian pay; dismissal; national security-nonsensitive position; recovery-overtime pay; 143 C. Cls. 806.--Plaintiff sued to recover back pay from the date on which he was suspended from his position in the Post Office Department to the date on which he received an offer of reinstatement, on the ground that the back pay provisions of the Act of August 26, 1950, 64 Stat. 476, 5 U.S.C. 8 22–1, et seq., entitled him to the payment of lost pay for the period of wrongful suspension. On October 8, 1958, the court rendered an opinion, 143 C. Cls. 806, holding that plaintiff was entitled to recover, and entered judgment to that effect with the amount of pay to be determined in further proceedings pursuant to Rule 38(c). Following a hearing, Trial Commissioner William E. Day, on August 21, 1959, filed a report in which he found that on the basis of plaintiff's work and pay record for the six months' period just prior to the date of his suspension plaintiff would in all probability have continued to work the same schedule and earn the same rates of pay during the period of suspension, including night differential pay. The trial commissioner also found that plaintiff would have accrued 28 days of annual leave during the period of suspension. The trial commissioner found that plaintiff's lost earnings, including accrued annual leave, for the period of wrongful suspension amounted to $10,419.59, and that his outside earnings for that period were $6,480.18. On February 3, 1960, the court issued an order adopting the findings of the trial commissioner, citing Lockwood v. United States, No. 249–58,

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149 C. Cls.

decided February 3, 1960,- in which it was held that compensation for overtime which a wrongfully dismissed employee would normally have earned was recoverable in a suit for back pay, and directing that judgment be entered for plaintiff in the amount of $3,940.41.

No. 227-57. FEBRUARY 3, 1960

John W. Erb.

Military pay; retired pay. Upon consideration of a report by the trial commissioner and the briefs and oral argument by the parties, it was ordered that pursuant to 10 U.S.C. $ 1372 plaintiff is not entitled to the retired pay as a major but that on the basis of the decisions by this court in Tracy v. United States, 136 C. Cls. 211; Budd v. United States, 141 C. Cls. 123, and Lowell v. United States, 141 C. Cls. 111, plaintiff is entitled to the retired pay of a captain for the subject period. On May 20, 1960, judgment was entered for plaintiff for $15,621.61.

No. 464-58. FEBRUARY 3, 1960

Cathie Lee Clark.

Civilian pay. Upon consideration of plaintiff's and defendant's motions for summary judgment, together with the briefs and oral argument of counsel, and based on the decision by this court in Chisholm v. United States, decided this date, ante, p. 8, it was ordered that plaintiff's motion for summary judgment be granted and defendant's like motion denied, and judgment entered to that effect with the amount of recovery to be determined pursuant to Rule 38 (c). Defendant's motion for new trial was overruled June 8, 1960.

1 The opinion of the court in Lockwood v. United States is not reported in this volume inasmuch as the court, on November 25, 1960, issued an order pursuant to Rule 54 setting aside its judgment of February 3, 1960, and vacating and withdrawing its opinion of that same date, and also allowing plaintiff to file an amended petition claiming overtime pay for overtime hours which had been regularly scheduled for the position from which he was separated. On March 24, 1961, the court issued a further order in the Lockwood case entering judgment in the amount of $2,000 based on a stipulation of the parties..

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No. 436–55. FEBRUARY 19, 1960 Meyer L. Casman.

Civilian pay; reduction in force; 143 C. Cls. 16. In this case the following order was entered:

This case comes before the court on defendant's motion, filed January 26, 1960, to amend the judgment entered for plaintiff on October 7, 1959, so as to provide for the recovery by plaintiff of the additional sum of $3,983.15 to which he is entitled under the court's opinion of July 16, 1958. Said sum represents amounts which had been deducted in determining the amount of the October 7, 1959, judgment on the grounds that plai tiff would receive credits in the above sum in the Civil Service Retirement and Disability Fund and the Employees' Life Insurance Fund. It now appears that no such credits will be made unless the judgment of this court provides for the recovery by plaintiff of this additional sum. Upon consideration thereof,

IT IS ORDERED this nineteenth day of February, 1960, that a supplemental judgment be and the same is entered for plaintiff in the sum of three thousand nine hundred eighty-three dollars and fifteen cents ($3,983.15), of which sum $3,905.40 shall be credited to plaintiff in the Civil Service Retirement and Disability Fund and $77.75 shall be credited to plaintiff in the Employees' Life Insurance Fund. BY THE COURT.

MARVIN JONES,

Chief Judge.

No. 231-59. MARCH 11, 1960 Maude Edwards.

Civilian pay. Upon consideration of defendant's motion to dismiss plaintiff's petition and plaintiff's opposition thereto, together with oral argument by counsel and pursuant to 38 U.S.C. 8 211(a), it was ordered that defendant's motion be granted and plaintiff's petition dismissed.

No. 416–58. MARCH 18, 1960 Keco Industries, Inc.

Contract. Upon consideration of defendant's motion for summary judgment and plaintiff's opposition thereto, to

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