61 F.2d 605 | 5th Cir. | 1932
This was an action brought on Mareh 28, 1931, by tbe appellant against tbe appellee, Collector of Internal Revenue, to recover tbe principal sum of $4,551.01, with interest, that sum being part of tbe amount, $6,871.18, assessed against appellant, in November, 1921, as a deficiency of income and profits taxes for the year 1917, and paid by him on November 5, 1923. Appellant’s petition alleged the filing by him on November 5, 1927, of a claim for refund. That petition as it was amended showed that the only ground stated in the claim for refund which was relied on in the suit was the following:
“Apparent Errors in Adjustments in Invested Capital at December 31, 1916, and in Net Income for 1917.
“It is believed that the agent was in error in eliminating the following items from assets shown on balance sheet as of December 31, 1916:
Wagons ........................................ $1,750.00
Tubs, cans and cabinets....................... 1,000.00
Furniture and fixtures......... 300.00
Accounts receivable ........ 819.87
Notes receivable .............................. 400.00
$4,269.87
and that these amounts should be restored to Invested Capital, an audit is now being made of taxpayers books to determine the correctness of these adjustments as well as the adjustments made in Net Income for the year 1917.
“The original return for this year reflected a loss of $21,047.25. The agent made adjustments to reflect taxable gain of $16,-940.18 — a difference of $37,987.43.
“If tbe audit now being made reflects a different result it will be submitted as additional evidence.”
Tbe amended petition after alleging the filing of the claim for refund, alleged as follows:
“That thereafter on or about November 13, 1928, and January 2nd, 1929, detailed statements showing all of the items entering into and making up net income and invested capital were duly filed with the Commissioner of Internal Revenue supplementing and supporting the claim, said statements being under oath and intended as amendments to the claim; that the commissioner accepted the claim without objecting to it as insufficient in form and had the same under consideration from November 5, 1927; that tbe amendments to tbe claim were filed prior to May 1, 1929, and before the Commissioner bad acted on the claim and no objection was made to the sufficiency of the claim until June 20, 1929.
' ‘‘That thereafter on September 18, 1929, the Commissioner of Internal Revenue rejected said claim for refund in full.”
■ The letter, a' copy of which was made Exhibit “B,” was dated February 21, 1929, and the body of it was the following:
: “Find herewith agreement form 866 pre-'. pared for the signatures of the officers of the above named corporation. ■ You will note that the corrected tax liability' is $2,322.98. Originally or previously assessed $6,873.99, refund due $4,551.01.
“The amended net income upon which this tax is computed is $9,546.35, arrived at as explained to you in conference the other day.
“Kindly have this document signed by the president, attested by the secretary, the corporate seal affixed, and dated, and return to -me in the enclosed envelope at the earliest possible date.”
It appears from the opinion rendered, but not from the record proper, that by amendment of the petition, allowed August 10, 1931, the facts upon which the above set out letter was based were set forth as follows:
-“Net Income on which Commissioner based additional assessment of $6,-873.99 .................................... $16,940.18
“Less:
Coca Cola rebates due Customers at December 31, 1917 $5,666.10
Checks outstanding for purchases December 31, 1917.... 2,188.55
Total- ........................ $7,854.65
“Plus: ■
Checks issued in 1916 and paid in 1917.................. 460.82
Net reduction ...................... 7,393.83
“Corrected Net Income.................... $ 9,546.35“
The petition as amended did not allege that the alleged payment by appellant was made under protest. The court sustained a ■demurrer to the petition as. it was amended, and dismissed that petition.
In argument in behalf of the appellee it was contended that the action of the court in sustaining the demurrer to the amended petition is sustainable on the grounds: (1) That the suit was not maintainable because the amended petition did not show that the alleged payment exacted of the appellant was made under protest; and (2) that the amended petition did not show that the ground therein stated in support of the asserted right to recover was stated in the alleged claim for refund.
1. The Revenue Act of 1924 (26 USCA § 156, 43 Stat. 343) introduced into the provision with reference to suits for the recovery of taxes wrongfully collected the provision “but such suit or proceeding may be maintained, whether or not such tax, penalty, or sum has been paid under protest or duress.” Prior to the enactment of the quoted provision an overpayment of income taxes, without protest was not recoverable from the Collector of Internal Revenue. Fox v. Edwards (C. C. A.) 287 F. 669; Warner v. Walsh (D. C.) 24 F.(2d) 449. The alleged excessive payment was made by the appellant before the enactment of that provision, but this suit was brought after that provision was enacted. That a statute shall not be given retroactive effect unless such construction is1 required by explicit language or by necessary implication is a rule of general application. United States v. St. Louis, S. F. & T. Ry. Co., 270 U. S. 1, 46 S. Ct. 182, 70 L. Ed. 435. The suit asserts a personal liability of the appellee. Sage v. United States, 250 U. S. 33, 39 S. Ct. 415, 63 L. Ed. 828. At the time of the alleged overpayment by the appellant without protest, it did not subject appellee to any enforceable liability. A result of permitting the maintenance of the suit would be to give to a subsequently enacted statute the effect of creating a personal liability for the doing of an act which at the time it was done did not give rise to any liability. To say the least, it is not clear that the quoted provision of the statute was intended to, or constitutionally could, have the effect attributed to it. Fullerton Co. v. Northern Pacific Ry. Co., 266 U. S. 435, 45 S. Ct. 143, 69 L. Ed. 367;. Warner v. Walsh (D. C.) 27 F.(2d) 952. But it is not necessary to pass on the question under consideration if the allegations of the amended petition do.not show that appellant would have been entitled to recover anything if his alleged overpayment had been made under protest.
The timely filing of a claim for refund according to regulations established pursu
The judgment is affirmed.