295 F. 319 | 5th Cir. | 1923
The appellant filed his bill in equity to enjoin the appellee, individually and as collector of internal revenue, from levying a distraint to collect the sum of $2,522.64, assessed against the appellant by the Commissioner of Internal Revenue.
The bill avers that on April 1, 1918, the appellant filed with the collector of internal revenue an income tax return for the year 1917 showing a total tax liability of $6,904.61, which he promptly paid; that on March 17, 1923, the Commissioner of Internal Revenue notified the appellant that his total-tax liability for the year 1917 was $2,522.64 in excess of his return, and that an assessment for taxes in ihe additional amount would be made; that such assessment was made, and thereafter, on April 2, 1923, the appellee made a written demand for payment; that the appellant is possessed of valuable property, consisting chiefly of real estate, and also has on deposit in various banks the money necessary for the conduct of his business, for the maintenance of himself and family, and for the payment of his obligations; and that the appellee, unless enjoined, would seize the said bank accounts and appropriate the same to the satisfaction of the assessment for taxes.
The District Court denied the application for an injunction, and upon appellee’s motion dismissed the bill of complaint. The bill does not aver that the assessment is incorrect, and it is a fair inference from the averments it does contain that the appellant is amply able to pay the amount which the government is seeking to collect. We are of opinion that the appellant has an adequate remedy at law, in that he may, after paying the amount of the assessment, sue the collector for its return. We take judicial notice that April 1, 1923, fell on Sunday. The list containing the assessment against the appellant was in the hands of the collector in Texas on Monday, April 2, 1923, and must therefore have been signed by the Commissioner of Internal Revenue and mailed from Washington before the 1st day of that month. It thus appears that the assessment was made within the statutory period of five vears from the date of appellant’s return, which was filed April 1, 1918,'
The order of the District Court is affirmed.