The opinion
GREEN, Judge
(concurring).
If the Commissioner had adhered to his original determination with reference to the payment by plaintiff and the applica-. tion of the overassessments, he would have been on safe ground. But, realizing that a large amount of money would eventually have to be returned, he refunded the amount of the overassessments without interest, having previously and continuously given the plaintiff clearly to understand that interest would not be allowed as demanded. It is urged by plaintiff that the law expressly required the payment of interest on refunds, but I do not think this prevented the Commissioner from making a conditional payment especially under the circumstances of the case. In York Safe & Lock Co. v. United States, 40 F.(2d) 148 , 69 Ct.Cl. 529, 538 , we held that section 284 (a) of the Revenue Act of 1926 was mandatory that an overpayment should be credited against any tax due. In Standard Oil Co. (Indiana) v. United States, 5 F.Supp. 976 , 7 F.Supp. 301 , 78 Ct.Cl. 714 , we discussed this matter further and held that the statute required the Commissioner to credit overpayments on deficiencies then existing. In Eastman Kodak Co. v. United States, 13 F.Supp. 435 , 82 Ct.Cl. 504 , we reaffirmed this rule. In the case at bar, the Commissioner had determined that over-payments had been made and that there was a deficiency. He. therefore had no right or authority to refund any part of the overpayment that should under the law have been applied on the deficiency. When the Commissioner made the final settlement and adjustment of plaintiff’s account for the 3 years involved, he complied with the law by applying the overpayments for 1918 and 1919 in payment of the deficiency of 1920 and computed the interest accordingly, The law did not require that interest should be allowed on a refund illegally paid, and his final determination was correct.
I am authorized to state that WILLIAMS, Judge, and BOOTH, Chief Justice, concur in the views above expressed.