thereupon becomes the amount of the deficiency. The date of the notice and demand by the collector for payment was August 1 following the assessment. Within 30 days thereafter $255.02 was paid and request was made for an extension of time for paying the balance of the deficiency ($255.01), and an extension from August 1 to and including February 1 was granted for the payment thereof. This amount bears interest at 6 per cent per annum for the period of the extension, amounting to $7.71. The remaining liability is, therefore, $262.72 (though paid in full prior to the expiration of the extension). The amount of liability in this instance was not paid until August 1 following the expiration of the extension. Inasmuch as the $255.01, the time. for payment of which was extended, was not paid until after the expiration of the extension, interest accrued thereon at the rate of 1 per cent a month for six months, amounting to $15.30. (The term "month" means calendar month, i. e., a period terminating with the day of the succeeding month numerically corresponding to the day preceding the beginning of the period. If there is no such corresponding day of the succeeding month, the last day of such succeeding month is the last day of the period. Where interest at the rate of 1 per cent a month is to be computed for a period of one or more months and a fraction of a month, it should be computed for the number of whole months, and then for the fraction of a month upon the basis of the number of days in the month which includes such fraction. Thus, for example, the elapsed period from February 14 to March 13, both dates included, is one month, and the period from February 14 to March 11, both dates included, is twenty-six twenty-eighths of a month, except that if the year be a leap year the period is twenty-seven twenty-ninths of a month.) The amount due on August 1 was, therefore, $278.02 ($255.01 + 7.71 + 15.30).

Any addition to the tax resulting from the imposition of an ad valorem penalty under the provisions of section 3176, Revised Statutes, for delinquency in filing the return, is subject to the same provisions of law relating to the assessment, collection, and the accrual of interest, as the deficiency tax, except that such addition to the tax is not subject to any interest between the due date for payment of the tax (one

year after date of decedent's death) and the date of the assessment thereof.

Where a claim is filed for the abatement of any deficiency tax, or any addition to the tax resulting from the imposition of an ad valorem penalty, interest accrues on such portion of the deficiency, or penalty, if any, as is not abated, at the rate of 6 per cent per annum from the date of the notice and demand by the collector following the jeopardy assessment to the date of the notice and demand by the collector subsequent to the action taken on the claim by the Commissioner or by the Board of Tax Appeals, if an appeal is filed. If the amount, the claim for abatement of which is denied, is not paid in full within 30 days after such notice and demand subsequent to the action on the claim for abatement, interest accrues upon the unpaid amount at the rate of 1 per cent a month from the date of such notice and demand until it is paid.

MACTAVISH v. MILES

(District Court of the United States, 1920. 263 Fed. 457,
1 Am. Fed. Tax R. 1146.)

ROSE, District Judge. Emily Caton Mactavish, administratrix c. t. a. of Maria Mayo Mactavish, has filed this petition. She says that her decedent, who was a Carmelite nun, died on the 17th of April, 1917, in a convent of that order in Brussels, then in the military occupation of Germany, with which this country was at the time at war; that because of the difficulties and delays of communication in wartime, and of other circumstances set forth, it was not until the 14th of May, 1919, that letters of administration with the will annexed were granted by the orphans' court of Baltimore City to the petitioner, and because of the fact that a large part of decedent's estate consisted of interests in common with other members of her family, it was not until the 30th of September, 1919, that she was able to make the return required by Act September 8, 1916, c. 463. In consequence, the collector of internal revenue required her to pay, in addition to the tax, the sum of $1,025.51, as interest thereon at the rate of 10 per cent per annum from the time of the decedent's death until February 25, 1919, and thereafter at 6.per cent per annum until the return was made.

Section 204 of the Act of 1916 (Comp. St. § 63361⁄2e) provided:

"The tax shall be due one year after decedent's death. If the tax is not paid within ninety days after it is due interest at the rate of ten per cent per annum from the time of the decedent's death shall be added as part of the tax."

From the time the act of February 24, 1919 (section 406), became effective, the interest rate was reduced to 6 per cent per annum. She alleges that this exaction, although called interest in the statute and by the collector, is in fact a penalty. She asks that I summarily investigate the facts set out in the petition, and report them to the Secretary of the Treasury in the manner and form required by section 5292 of the Revised Statute (Comp. St. § 10130).

Contrary to what Mr. Justice Story, while on circuit, said. in The Margaretta, 16 Fed. Cas. 719, No. 9,072, and Judge Ware in The Palo Alto, 18 Fed. Cas. 1062, No. 10,700, Hayburn's Case, 2 Dall. 409, 1 L. ed. 436, U. S. v. Yale Todd, 13 How. 52, note, 14 L. ed. 47, note, and U. S. v. Ferreira, 13 How. 40, 14 L. ed. 42, make it clear that anything a judge does under a petition like the one before me is in the capacity of a special commissioner, in an administrative, and not in a judicial, position. Whether a judge will or will not act as such commissioner is optional with him. It is not part of the judicial duties which Congress may require of him. Judges have frequently acted under the statute, constrained doubtless by the feeling that it is the only opportunity afforded by law for obtaining remission of what may have been an unjust exaction. Petrel Guano Co. v. Jarnette, (C.C.) 25 Fed. 675.

Legislation of recent years has withdrawn most, if not all, the customs penalties from the operation of this statute. 29 Op. Attys. Gen. 261. It is an anomalous proceeding. The Secretary of the Treasury cannot remit without findings of fact by the judge, but he may refuse to remit, no matter what those findings may be. It would appear that a judge should not act unless there is some probability that his so doing will be of some use to somebody.

In this case the United States says that which the petitioner says is a penalty is not, and that, therefore, the statute has no application. Whether it is or not involves both a construction of the original statute and of the Act of 1916. It is clear that the judge in this proceeding has no power to pass on anything but the questions of fact.

Under all the circumstances I must decline the office of special commissioner in this matter.