Opinion of the Court

On the other hand, defendant insists (1) that the claim is one "arising out of the pension laws," and for that reason is not within the court's jurisdiction, and (2) that the application relied upon by plaintiff was filed after the veteran's death and there was no compliance with the adjusted compensation act.

If the claim be construed as a pension the court's jurisdiction is expressly excluded by the organic act. Section 145, Judicial Code. But in cases of a mere gratuity granted by a statute this court has frequently granted relief. See Semple case, 24 C. Cls. 422; Mumford case, 31 C. Cls. 210; United States v. Realty Co., 163 U. S. 427, 441. See the many "extra pay" cases growing out of Spanish War, 39 C. Cls. 569, based upon Hunt case, 38 C. Cls. 704. It is to be borne in mind, however, that in no event can the court be called upon to perform executive duties or treat them as performed when they have been neglected. See McLean's case, 95 U. S. 750, 753. In this case it was said that courts can not enforce rights which are dependent for their existence upon a prior performance by an executive officer of certain duties, which he has failed to perform. See also Dunlap case, 173 U. S. 65, 70.

It is not necessary, however, to a proper decision of the case before us to decide that this court has no jurisdiction of any claim arising under the World War adjusted compensation act, because if it be conceded that plaintiff's claim is one that this court may consider, it would yet be true that the facts present an insurmountable obstacle to any recovery. When a case properly comes here under this phase of its jurisdiction the court must apply the law to the established facts, whether these are ascertained from the evidence or are stipulated. The case becomes one against the United States, which should be considered upon its merits. See Medbury case, 173 U. S. 492, 500; McKnight case, 13 C. Cls. 292, 310; 98 U. S. 179; McLean case, 226 U. S. 374; Emery case, 237 U. S. 28.

In the instant case the facts are stipulated. It appears from them that the veteran died before the supposed application was forwarded to the Secretary of War. According to the stipulation he had "completely and duly made out an

Opinion of the Court

application addressed to the Secretary of War claiming the benefits" of the act, which conformed to all of its requirements ("except as to finger prints "-whatever that phrase may mean) and was dated November 20, 1924, the plaintiff being therein named as beneficiary. But the veteran died on December 6, some 16 days after the application was thus made out. It was not filed or forwarded in his lifetime, nor did the veteran authorize anyone else to file or present it for filing. It was forwarded to the Secretary after his death, and was received in the Secretary's office December 24, 1924. There is no suggestion of a wrong or an attempted wrong by anyone. It may be assumed that the application was in the veteran's possession or among his effects when he died. At any rate it does not appear that he ever committed it to anybody as his compliance with the act, which, in section 301, requires the filing of an application claiming its benefits.

So far as the facts show, the application, though filled out as stated, was under his absolute control at the time of his death, subject to his change of the beneficiary (whom the statute, section 501, gives him the right to change), subject also to be withheld by him entirely as an application. No one could do after his death the essential thing which he had omitted to do. In the absence of some statutory extension of it, the right to file an application naming a beneficiary ceased with his death. See B. & O. Railroad v. Joy, 173 U. S. 226, 229; Martin v. B. & O. Railroad, 151 U. S. 673, 697. It is provided in section 601 for the procedure by the veteran's dependents in case of his death, without making application under section 302. This right of his dependents can not be ignored. The act prescribes that the application shall be made (1) personally by the veteran, or (2) in case physical or mental incapacity prevents a personal application, then by such representative of the veteran and in such manner as the Secretary of War and the Secretary of the Navy shall jointly by regulation prescribe. There is some significance to be attached to this requirement that a personal application be made. It must be the veteran's own act. The filing of it with the Secretary of War may not, in the very nature of things, at all times be

Reporter's Statement of the Case

done "personally" by the veteran, but the filing must also appear to be the voluntary act of the veteran, unless he be suffering from the incapacity mentioned.

These required conditions, even if formal, must be complied with before suit can be maintained against the United States. Rock Island, etc., R. R. case, 254 U. S. 141, 143. The plaintiff, suing in her own right as beneficiary under an application that in legal contemplation never became such, can not recover. See Mumford's case, supra.

The petition should be dismissed, and it is so ordered.

GRAHAM, Judge; HAY, Judge; and BOOTH, Judge, concur. DOWNEY, Judge, concurs in the result.

AUBURN & ALTON COAL CO. v. THE UNITED STATES

[No. D-242. Decided January 18, 1926]

On the Proofs

Income tax; deductions; sec. 204, revenue act of 1918.-Losses in the year 1919, due to the sale of all of plaintiff's property used in the operation of its business, do not result from operation, and are not the net losses referred to in section 204 of the revenue act of 1918 as deductible from the income-tax return for the preceding year.

The Reporter's statement of the case:

Mr. Haines H. Hargrett for the plaintiff. Messrs. Robert N. Miller, Stuart Chevalier, and Harry Friedman were on the briefs.

Mr. Ralph C. Williamson, with whom was Mr. Assistant Attorney General Herman J. Galloway, for the defendant.

The court made special findings of fact, as follows:

I. The plaintiff is an Illinois corporation, organized on August 21, 1900. Its articles of incorporation provide that "the object for which it is formed is mining and selling coal and other minerals and the manufacture of brick and tile." From the date of organization until September 30,

Reporter's Statement of the Case

1919, it was actively engaged in the business of mining and selling coal.

II. Upon organization and from time to time thereafter the plaintiff purchased coal mines, mining rights, mine equipment, and other property and property rights needed and used by it in the operation of its business, its investments therefor aggregating the sum of $227,399.02. No part of same was acquired for the production of articles contributing to the prosecution of the World War.

III. On September 30, 1919, the plaintiff sold the aforesaid assets, less depreciation (together with mine supplies and stores, etc., of the net value of $6,144.07), to L. J. Pulliam, of Springfield, Ill., for the sum of $100,000.00. It did not, however, sell its other assets, such as bonds, notes, and accounts receivable, and choses in action, amounting in value to not less than $40,000.00. The purchaser was not connected in any way with the plaintiff or with its stockholders. The parties dealt at arms' length, and the purchase price represented the utmost that the plaintiff could obtain for the property at that time.

IV. Upon said sale, and as a result thereof, the plaintiff suffered a loss of $75,789.50, which was a loss deductible from its 1919 income, under the provisions of section 234 (a-4) of the revenue act of 1918.

V. During the year 1919 the plaintiff realized from other transactions a profit of $12,288.11, so that the actual loss sustained by the plaintiff during that year amounted to $63,501.39.

VI. In the previous year, 1918, the plaintiff's net income, as defined in section 232 of the revenue act of 1918, was $141,999.84. Its invested capital for the year, as defined in section (a) of the revenue act of 1918, was $177,511.22. Its war profits credit" for the year, as defined in section 311 (a) of the revenue act of 1918, was $20,751.12.

66

VII. The plaintiff filed with the collector of internal revenue at Springfield, Ill., on May 16, 1919, a return of its income for the year 1918, and upon the same there were assessed income and profits taxes in the sum of $96,729.01, which amount the plaintiff paid to the said collector as follows: On March 15, 1919, $24,180.66; on May 16, 1919,

Reporter's Statement of the Case

$1.60; on June 15, 1919, $25,000.00; on September 15, 1919, $23,364.52; on December 15, 1919, $24,182.23.

VIII. On March 10, 1920, the plaintiff filed with the said collector of internal revenue the following documents, made out upon forms supplied by the Commissioner of Internal Revenue and in all respects conforming to and complying as to form with the requirements of the law and the rules of the Treasury Department, to wit:

(a) A return of income for the year 1919, showing, according to the facts alleged therein, that the plaintiff had realized no profit during that year, but had suffered a net loss of $74,269.75.

(b) An amended return of income for the year 1918, deducting from its income for that year the amount of its loss in 1919, and recomputing its 1918 taxes, to the end that the said amended return indicated that if deduction for the 1919 loss, referred to in paragraph 4 above, should be allowed, the amount of income and profits taxes due by the plaintiff for the year 1918 should be $35,529.86, or $61,199.15 less than plaintiff actually paid.

(c) A claim for refund, made out on Form 46, revised, in full compliance with the law and the regulations of the Treasury Department, asking that the aforesaid sum of $61,199.15 be refunded to the plaintiff.

These figures differ from those stipulated in paragraphs IV, V, and VI above, because the latter were based upon the plaintiff's books, whereas the former are based upon the audit made by the Bureau of Internal Revenue.

IX. Thereafter the plaintiff submitted proof of the foregoing facts to the Commissioner of Internal Revenue, but on March 11, 1924, the said commissioner rejected and disallowed the aforesaid claim for refund, not because of any insufficiency of proof or unsatisfactory showing of fact, but because of his conclusion of law that under section 204 of the revenue act of 1918 a net loss attributable to the sale of capital assets of a corporation, other than assets described in subdivision a-2 of that section, is not a "net loss " which the act defines and permits to be deducted from the income of the previous year.