54 A.2d 570 | D.C. | 1947
Plaintiff, appellant here, sued defendant to recover an amount allegedly deducted from plaintiff’s wages’ as a withholding tax under the federal income tax law' but not paid to the'- federal government. His suit was dismissed, and he appeals.
In his bill of particulars,
While the trial court’s action in first refusing to dismiss the complaint, then hearing the plaintiff’s evidence, and then granting the original motion to dismiss, was unusual, we do not think it constituted error.
In other similar cases, albeit not involving withholding taxes, but cases in which one party acted as agent of the sovereignty for the collection of the tax involved, it has been held that once the party primarily liable for the tax has paid the amount over to the agent designated by the government, his liability is discharged.
The provisions of the statute and of the regulations thereunder clearly demonstrate that the withheld wages were to be retained by the employer until paid over to the federal government. It is true that if the appellant recovered the amount sued for, the government, as 'beneficiary of the trust, could follow it into the hands of the appellant, if the diverted fund could
We think we should emphasize that the trial court did not pass on the question whether plaintiff actually was employed by defendant’s decedent, or whether the tax was actually withheld. It follows that we likewise are not determining those questions. We merely give full effect to the allegations of plaintiff’s bill of particulars.
Affirmed.
The suit being for less than $500, no complaint was required under Municipal Court practice.
See Rice v. Simmons, D.C.Mun.App., 53 A.2d 587.
Pacific States Box & Basket Co. v. White, 296 U.S. 176, 185, 56 S.Ct. 159, 80 L.Ed. 138, 101 A.L.R. 853; Simpkins v. Brooks, D.C.Mun.App., 49 A.2d 549.
Nolte et al. v. Hudson Nav. Co., 2 Cir., 8 F.2d 859; In re Rockaway Paint Centre, Inc., 249 App.Div. 66, 291 N.Y. S. 341; Urquhart v. Marion Hotel Co., 128 Ark. 283, 194 S.W. 1, L.R.A.1917F, 203.
In re Frank, D.C.S.D.N.Y., 25 F.Supp. 1005; see Note (1947) 60 Harv.L.Rev. 786.