The opinion
Love,
dissenting: I agree with the decision and opinion on all points except that where the holding is made that it is legally correct to include as a part of a deficiency a claim made by the Commissioner for money erroneously refunded to the taxpayer. That r.lrnm is not a claim for taxes, but is a claim for money had and received, as was correctly held in Kelley v. United States, 30 Fed. (2d) 193. This Board has not jurisdiction to adjudicate a claim for money had and received. The refunded money occupies exactly the same status as the interest paid on that refund.