Opinion of the Court 93 C. Cls. previous timely claim had not yet been acted upon by the Commissioner of Internal Revenue at the time the later claim was filed is immaterial. The Commissioner has no power to waive the statute of limitations after it has run. United States v. Garbutt Oil Co., 302 U. S. 528. The language of the court in Pink v. United States, (C. C. A. 2d) 105 F. (2d) 183, 187, relied upon by plaintiff, gives it no aid in this case. The court there said that where the original claim filed is such that the facts upon which the amendment is based would necessarily have been ascertained by the Commissioner in investigating the merits of the original claim, the amendment may be made after the statute has run. Here the investigation of the timely claim as to the nontaxability of dividends of domestic corporations would not lead the Commissioner to suspect that plaintiff had done the unusual thing of including 1927 income in its 1928 return. We conclude, therefore, that plaintiff's claim for refund of $10,361.91 taxes paid on its return of $86,394.50 of income in 1928, which was 1927 income, is barred because no timely claim for refund was made to the Commissioner of Internal Revenue. However, as we shall see hereinafter, even though plaintiff's claim for refund as to the 1927 income on which it paid 1928 taxes had been timely filed, the result would not be changed because even in that event plaintiff did not overpay its 1928 taxes. The defendant's third contention is, as we have said, that regardless of the merits of either or both of plaintiff's asserted grounds for recovery, plaintiff underpaid rather than overpaid taxes on its 1928 income. It will be remembered that plaintiff in 1928 became entitled to 10,800 B shares in Fund H-27 and 37,800 B shares in Fund B-28. In the return it valued the former at $41,688 and the latter at $15,200.73, a total of $56,888.73. It arrived at these valuations by taking the market value of the underlying securities on the dates in question, subtracting from that sum the product of twenty times the number of A shares and dividing the remainder by the num ber of B shares. This, plaintiff claims, was its total taxable income in 1928, so far as relates to this controversy. We have held that as to $86,394.50 more of its return, which was 1927 income, plaintiff may not have a refund because it did 643 Opinion of the Court not file a timely claim. It returned and paid taxes on $225,321.98. The defendant claims that the 48,600 shares had a fair market value, not of $56,888.73 as returned by plaintiff, but of at least $225,321.98, and that therefore plaintiff did not overpay its tax. Our question then is whether these B shares had an average fair market value of at least $4.64 per share, which would justify all the income that plaintiff returned in 1928, or at least, $2.86, which would absorb all the income as to which plaintiff is not barred by limitation from seeking a refund. No one could get the separate B shares from the trustee except plaintiff, and it never sold them nor offered them for sale. No offer to plaintiff for them is shown. The B shares were bought and sold only in the inseparable combination with A shares. Since the combined shares were not listed on any exchange, but were sold only "over the counter", no record is available of actual sale prices, but only of bid and asked quotations, as that is the practice of the financial journals which publish such reports. The following tabulation shows the number of B shares and the dates in 1928 on which plaintiff became entitled to them, the bid and asked quotations on the combined shares on those dates, as shown by the joint exhibit of the parties prepared from financial reports current in 1928, and the values of the B shares, assuming that the A shares accounted for $20 of the value of the combination, or in the alternative, of $18 of the combination. Opinion of the Court 93 C. Cls. Assuming the A shares to have had a par value of $20, which plaintiff seriously urges that they had, the bid price for the B share portion of the combination at the time that plaintiff became entitled to its B shares was $141,300, as against the $56,888.73, at which plaintiff valued them in its return. But the market value of the A share portion of the combination was not $20. It could not have been more than $18, since the voluntary cashing in of a combination share by a shareholder was subject to a discount of $2 from the $20 par value. Counting the value of the A shares at $18, the tabulation shows that the B shares had a value of $238,500, which is more than the $225,321.98 which plaintiff returned and on which it paid taxes. In fact the A shares in these funds had a market value of less than $18 per share. There would have been no reason why an investor would pay $18 for a preferred stock with a noncumulative return of 3% on a $20 par value, and a liquidating value of $18 if he desired to withdraw his cash from the enterprise. A better return could have been obtained on government bonds,1 municipal bonds,2 public utility bonds or savings bank deposits, forms of investment just as convenient. The investor in these combination shares was looking to the increment in value of the underlying securities and to their dividends. The increases in value of the bank, trust company and insurance stocks comprised in these trusts, had, over the preceding years, been regular and substantial. Their cash and stock dividends had been large. The opportunity for the ordinary investor to obtain an interest in a selected list of such stocks, and to have the list managed by plaintiff must have been a principal attraction. The fact that the securities initially deposited in the H-27 trust on September 1, 1927, had cost the distributor an amount equal to $20 for each combined share, yet the shares had a bid and 1 The rate on long-term government bonds was 3.33%. Annual Report of the Secretary of the Treasury, June 30, 1939, p. 486. 24.02%, based on a selected list. United States Statistical Abstract, 1935, p. 284; The Bond Buyer. The figure given in the Standard Bond Investment Book (Standard Statistics Co.), based on 4,000 better grade issues, is 5.395%. The United States Statistical Abstract, 1935, p. 284, lists 4.68%, based on 15 better grade issues. In New York the average return was 4.39%. Savings Banks Association of New York, Annual Report, 1929. 643 Opinion of the Court asked price of 231⁄44 and 233⁄4, respectively, on September 3, proves that the management trust set up by plaintiff added substantially in the mind of the investor to the bare value. of the separate stocks in the trust fund. Plaintiff's method of valuation assumes that the investor's principal interest at the time of putting his money in is in what he would realize on it in a forced liquidation. If that had been first in the minds of the investors in the case of these shares, they would not have invested at all. As to the earning power of the stocks in the trust, plaintiff's income of $82,038.75 from its class B shares for 1928 is significant. It had 48,600 such shares for the whole year, and 37,800 other such shares, most of them for the principal part of the year. Its average dividend from them was almost one dollar a share. The investor in the combined share was, similarly, receiving one dollar a share on the B part and 60 cents on the A part. It would have been difficult to convince him that, as plaintiff contends, the A part of the combined share was worth $20 and the B part $1.18, on the average, which was the value attributed to the B shares by plaintiff in its tax return. An expert offered by the defendant placed the value of the A shares at $7.50 and attributed all the rest of the market price of the combinations to the B shares, thus giving them a market value of from $13.50 to $21, at different relevant times. This expert was, at the time he testified, the manager of Insuranshares Certificates, Inc., the company formed when Insuranshares trust certificates were liquidated in the fall of 1929 for the purpose of forming a corporation whose stock would be listed on the New York Stock Exchange. It is not necessary for us to determine the value so definitely. We are, as we have indicated, convinced that the aggregate value of the B shares in these two funds, received by plaintiff in 1928, was more than $225,321.98. Plaintiff having paid taxes on that sum, did not overpay its tax and is not entitled to recover. Its petition will, therefore, be dismissed. It is so ordered. JONES, Judge; WHITAKER, Judge; LITTLETON, Judge; and WHALEY, Chief Justice, concur. Opinion of the Court 93 C. Cls. LOUISIANA DELTA CATTLE CO., INC., v. THE UNITED STATES [No. 43575. Decided May 5, 1941] On Defendant's Motion to Dismiss Flood control; taking of property; consequentiul damagès.—Where in an action for damages to property by reason of the Flood Control, or Jadwin Plan, on the Mississippi River, there is no allegation in the petition of a past or consummated inundation or damage, and where the damage alleged is prospective upon the "abandonment or removal of the previous levees around said property," which plaintiff charges defendant "purposes to accomplish and obtain"; it is held that the plaintiff is not entitled to recover. Same. The mere fact that the value of property is injured or affected by some act which the Government proposed to do in the future does not establish a "taking" within the meaning of the Fifth Amendment. Danforth v. United States, 308 U. S. 271; United States v. Sponenbarger, et al., 308 U. S. 256; Bennington County Savings Bank v. United States, 91 C. Cls. 160; Kirch v. United States, 91 C. Cls. 196; Matthews, Trustee, v. United States, 87 C. Cls. 662, cited. Mr. Camden R. McAtee for the plaintiff. Mr. P. M. Cox, with whom was Mr. Assistant Attorney General Francis M. Shea, for the defendant. The facts sufficiently appear from the opinion of the court. GREEN, Judge, delivered the opinion of the court: Plaintiff is a corporation, and in its petition alleges that it is the owner of certain tracts of land, described at length therein, embracing 4,663.52 acres located adjacent or near the Mississippi River, and that at the time of the acquisition of this real property the same was defended and protected against flood or water submergence by public levees along the banks of the Mississippi River upon said property whereby the property was arable and of value and subject to drainage of rainfall; that, notwithstanding said conditions so existing, the defendant by its authorized agencies, on or about July 13, 1931, and thereafter, and |