¶1Mr. N. E. Corthell for petitioners.
¶2Assistant Attorney General Youngquist, with whom Solicitor General Thacher, Messrs. Whitney North Seymour and Sewall Key, and Miss Helen R. Carloss were on the brief, for respondent.
¶4delivered the opinion of the Court.
¶5Petitioners sued the respondent Collector in the United States District Court for Wyoming, September 20, 1929, to recover $7,297.16 alleged to have been . wrongfully exacted as income tax upon the estate of Cooper.
¶6February 18, 1921, the administrator filed a return for the period January 1 to December 12, 1920, the day of final settlement. Among others, he reported deductions for attorney’s fees, $20,750, and inheritance taxes paid to the State, $16,870. The amount of tax as indicated by the return was paid.
¶7November 24, 1925, the Commissioner, having audited the return, disallowed all deductions except the one for attorney’s fees and assessed a deficiency of $7,297.16. This sum was paid March 21, 1926; and on July 27, 1926, petitioners asked that it be refunded.
¶8A letter from the Commissioner to petitioners, dated May 18, 1929, and introduced in evidence by them, stated that the deduction of $20,750 for attorney’s fees had been improperly allowed. He also set out a revised computation wherein he deducted the state inheritance taxes. This showed liability greater than the total sums theretofore exacted. The Commissioner further said: “ Since the correct computation results in an additional tax as indicated above which is barred from assessment by the statute of limitations your claim will be rejected on the next schedule to be approved by the commissioner.”
¶9The trial court upheld the Commissioner’s action and its judgment was affirmed by the Circuit Court of Appeals.
¶10Counsel for petitioners relies upon the five year statute of limitations (Rey: Act. 1926, § 277).1 He maintains *283that the Commissioner lacked authority to redetermine and reassess the tax after the statute had run.2
¶11After referring to ■§ 284, Revenue Act of 1926, 44 Stat. 66, and § 322, Revenue Act of 1928, 45 Stat. 861, the Circuit Court of Appeals said [48 F. (2d) 515, 516]—
“The above quoted provisions clearly limit refunds to overpayments. It follows that the ultimate question presented for decision, upon a claim for refund, is whether the taxpayer has overpaid his tax. This involves a re-determination of the entire tax liability. While no new assessment can be made, after the bar of the statute has fallen, the taxpayer, nevertheless, is not entitled to a refund unless he has overpaid his tax. The action to recover on a claim for refund is in-the nature of an money had and received · Case Law">action for money had and received, and it is incumbent upon the claimant to show that the United States has money which belongs to him.”
¶12We agree with the conclusion reached by the courts below.
¶13While the statutes authorizing refunds do not specifically empower the Commissioner to reaudit a return whenever repayment is claimed, authority therefor is necessarily implied. An overpayment must appear before refund is authorized. Although the statute of limitations may have barred the assessment and collection of any additional sum, it does not obliterate the right of the United States to retain payments already received when they do not exceed the amount which might have been properly assessed and demanded.
¶14*284Bonwit Teller & Co. v. United States, 283 U. S. 258, says nothing in conflict with the view which we now approve.
¶15Affirmed.