Opinion of the Court 93 C. Cls. filed in 1938 were treated as an original petition, it was filed in time. It reasoned that because its claims for refund, filed with the Commissioner on September 27, 1930, have never been expressly rejected by the Commissioner, its right to sue continued and will continue until two years after the date of mailing by the Commissioner by registered mail of a notice of such rejection. See Revenue Act of 1932, section 1103 (a) (b), 47 Stat. 169, 286; Revenue Act of 1936, section 807 (a) (b), 49 Stat. 1648, 1745. Counsel for the defendant concede in their brief in support of defendant's demurrer that this would be the result "if, as alleged, refund claims were filed on September 27, 1930, and were still pending unrejected in the Bureau of Internal Revenue when that petition [the 1938 petition] was filed." Counsel for defendant then urge that the documents filed on September 27, 1930, were not "refund claims" because they were mere repetitions of the claims which had been filed in 1926 and rejected in 1927, and as to which an application to reconsider had been made and disallowed in 1929. We agree with the defendant that the 1930 claims were not effective legal claims for refund and therefore were without legal significance. A taxpayer cannot keep his claim fresh indefinitely merely by repeating it. B. Altman & Co. v. United States, 69 C. Cls. 549. See also Sugar Land Ry. v. United States, 71 C. Cls. 628; Hills, Executrix, v. United States, 73 C. Cls. 128; Pacific Mills Co. v. United States, 4 Fed. Supp. 738. The case of Jones et al v. United States, 78 C. Cls. 549, does not establish a different doctrine. The Court there said (560–561): These cases announce the rule that when the Commissioner, upon application made by a taxpayer within the time in which suit could be instituted on a disallowed claim, enters into a reconsideration of the merits of the claim and later makes a decison thereon rejecting the claim or adheres to his former decision rejecting it, his decision for the purpose of the statute of limitations is in abeyance until he has reached and anounced his final decision and the taxpayer, under section 3226 of the Revised Statutes, has two years thereafter in which to institute suit. Whether there has been a reconsideration on the merits is a conclusion to be drawn from the acts of the Commissioner in response to the application 316 Opinion of the Court for reconsideration. There must be an actual reconsideration of the case, and the final decision must be upon the merits of the claim. In this case there is no evidence that the Commissioner entered into a reconsideration of the case following the filing by the plaintiff of the documents of 1930. We, therefore, do not think that a claim for refund, as contemplated by the statute, stood unrejected after 1930. The provisions of section 1103 (b) of the Revenue Act of 19321 make section 3226 of the Revised Statutes as it was before it was amended in 1932 the applicable statute. It provided that No suit or proceeding shall be maintained in any court for the recovery of any internal-revenue tax alleged to have been erroneously or illegally assessed or collected, or of any penalty claimed to have been collected without authority, or of any sum alleged to have been excessive or in any manner wrongfully collected until a claim for refund or credit has been duly filed with the Commissioner of Internal Revenue, according to the provisions of law in that regard, and the regulations of the Secretary of the Treasury established in pursuance thereof; but such suit or proceeding may be maintained, whether or not such tax, penalty, or sum has been paid under duress or protest. No such suit or proceeding shall be begun before the expiration of six months from the date of filing such claim unless the Commissioner renders a decision thereon within that time, nor after the expiration of five years from the date of the payment of such tax, penalty, or sum, unless such suit or proceeding is begun within two years after the disallowance of the part of such claim to which such suit or proceeding relates. The Commissioner shall within 90 days after such disallowance notify the taxpayer thereof by mail. (Revenue Act of 1924, sec. 1014, 43 Stat. 253, 343). Plaintiff's amended petition, filed in 1938, being regarded as an original suit, is too late. It is eleven years after pay 1 Suits or proceedings instituted before the date of the enactment of this Act shall not be affected by the amendment made by subsection (a) of this section to section 3226 of the Revised Statutes. In the case of suits or proceedings instituted on or after the date of the enactment of this Act where the part of the claim to which such suit or proceeding relates was disallowed before the date of the enactment of this Act, the statute of limitations shall be the same as provided by such section 3226 before its amendment by subsection (a) of this section. Syllabus 93 C. Cls. ment, where only five years are permitted; and nine years after rejection, when only two years are permitted. Other questions raised in the briefs and argument we do not consider, since their resolution would not affect the result. We conclude, therefore, that the plaintiff's petition must be dismissed. It is so ordered. JONES, Judge; WHITAKER, Judge; LITTLETON, Judge; and WHALEY, Chief Justice, concur. NATIONAL RUBBER MACHINERY COMPANY v. THE UNITED STATES [No. 42614. Decided April 7, 1941] On the Proofs Income tax; basis for depreciation in reorganization.—Where plaintiff, a corporation formed for that purpose, acquired in exchange for its stock and for cash, all of the assets of three predecessor companies, and where less than 80 percent of the stock of plaintiff after the reorganization remained in the hands of the same persons, or any of them; it is held that under sections 113 and 114 of the Revenue Act of 1928 the basis for depreciation of the assets so acquired was their cost to plaintiff, and plaintiff is accordingly entitled to recover. Same. Where all of the assets of a corporation were acquired by plaintiff in exchange for plaintiff's stock and for cash, and where prior to receipt of said stock from plaintiff said corporation had made commitments for the sale of said stock, and did sell it later, it is held that said corporation was not a party to the reorganization under the provisions of the Revenue Act of 1928. Same.-Where plaintiff in exchange for its stock and for cash acquired only a portion of the assets of a corporation and not substantially all of the properties of said corporation; it is held that said corporation was not a party to reorganization under the provisions of the Revenue Act of 1928. The Reporter's statement of the case: Hamel, Park and Saunders for the plaintiff. Messrs. Charles D. Hamel, Lee I. Park, Lloyd G. Wilson, and C. F. Rothenburg were on the briefs 340 Reporter's Statement of the Case Mr. John W. Hussey, with whom was Mr. Assistant Attorney General Samuel O. Clark, Jr., for the defendant. Messrs. Robert A. Anderson and Fred K. Dyar were on the brief. The court made special findings of fact as follows: 1. Plaintiff is, and at all times herein mentioned was, a corporation duly organized and existing under the laws of the State of Ohio, with its principal office in Akron, Ohio. It was organized for the purpose of acquiring and carrying on the business of five corporations, hereinafter sometimes for convenience referred to as the "transferor corporations," engaged in the manufacture and sale of rubber machinery. 2. On July 12, 1928, plaintiff acquired, as of April 1, 1928, the entire properties, assets, business, and goodwill of the Akron Rubber Mold & Machine Company, a corporation, the Banner Machine Company, a corporation, the DeMattia Brothers, Inc., a corporation, and DeMattia Foundry & Machine Company, a corporation (both hereinafter sometimes for convenience referred to collectively as the DeMattia Companies); and the entire property, assets, and goodwill, except the land, buildings, accounts, bills receivable, cash, and securities of the Kuhlke Machine Company, a corporation. These properties were acquired by payment to the respective corporations on the same date, to wit, July 12, 1928, of cash, issuance of plaintiff's no par value stock, and assumption of liabilities as follows: 3. The costs of assets received by plaintiff from each of said corporations, computed on the basis of cash paid, stock Reporter's Statement of the Case 93 C. Cls. issued at market value of $18% per share, and liabilities assumed, were as follows: Akron Rubber Mold & Machine Co---‒‒‒‒ DeMattia Companies.. Kuhlke Machine Co- Banner Machine Co---- $852, 272. 64 633, 027, 24 265, 690. 61 614, 242. 50 4. The allocation of the aforesaid costs to depreciable assets in the cases of the DeMattia Companies and of Akron Rubber Mold & Machine Company, and additions subsequent to July 12, 1928, are as follows: 5. The assets acquired by plaintiff from the said five transferor corporations had estimated average useful lives after April 1, 1928, as follows: |