184 F. 759 | U.S. Circuit Court for the District of New Jersey | 1910
This suit was tried before the court without a jury; a jury having been waived pursuant to the statute. It was originally commenced in the First district court of the city of Newark, in the name of Henry Hensch, as plaintiff; but, as he was subsequently adjudged a bankrupt, his trustee was, by order of this court, substituted as plaintiff. The action was removed by certiorari from the city court to this court. The state of demand filed in that court sought to recover of the defendant the sum of $338.68, with interest from August 21, 1907, money paid to him as collector of internal revenue, by Hensch, in part as a special tax on the business of manufacturer of oleomargarine, alleged to have been carried on by Hensch at Jersey City, in this state, and for a penalty of 50 per cent, assessed under authority supposed -to have been conferred by section 3176 of the Revised Statute (page 2068, U. S. Comp. St. 1901), upon the said special tax, and in part for a special stamp tax upon certain oleomargarine and for other penalties therein mentioned, growing out of the same transaction.
The allegations of the state of demand, except those pertaining to the payment of the tax and penalties under duress arid to the ille-i gality of the assessment, were admitted at the trial. It appears by the evidence and admissions of counsel that Hensch was indicted in this district for having manufactured oleomargarine without having paid the special tax therefor required by law to be paid by a manufacturer thereof, and after trial on such accusation was acquitted. The record in that case was offered in evidence, and it was admitted
The point is now raised by the defendant that, as this suit was commenced against the defendant individually, and as the moneys never came into his hands, but into the hands of his deputy at Jersey City, and were deposited by him as above stated, the verdict herein must be in favor of the defendant. It is true that the summons was issued against the defendant individually; but the state of demand claims the moneys of him as collector of internal revenue for the Fifth district of the state of New Jersey. Moreover, his petition for the removal of the cause into this court sets forth that the defendant, acting as internal revenue collector of the United States, under and by authority of the acts of Congress, relating to the manu - facture and sale of oleomargarine, and the supplements thereto and amendments thereof, collected the moneys now in question. Again, the case was tried throughout upon the theory that the moneys were collected by the defendant as collector of internal revenue, and it was admitted at the trial that the assessment made by the Commissioner of Internal Revenue was sent to the defendant and by him. sent to his 'deputy at Jersey City, for collection. Under the circumstances, therefore, the summons ought to, and may properly, be considered as amended, so that it will be directed to the defendant as collector of internal revenue or otherwise, as may be necessary.
It is further urged on behalf of the defendant that the plaintiff cannot recover in this case because Hensch has not complied with the regulations prescribed by the Secretary of the Treasury under authority of section 3226, Rev. St. (U. S. Comp. St. 1901, p. 2088), in that his affidavit by way of petition to the Commissioner of Internal Revenue merely asked for an abatement and remission of the assessment, and that no petition was filed by him to have the tax and penalties refunded. The plaintiff, however, contends, under the authority of Tucker v. Grier, 160 Fed. 611, 87 C. C. A. 513, that sections 3221 and 3226 of the Revised Statutes (pages 2087, and 2088, U. S. Comp. St. 1901), do not apply to a return of taxes illegally assessed under the oleomargarine act. In that case it was said that because by sec
“No suit shall be maintained in any court for the recovery of any internal tax alleged to have been erroneously or illegally assessed or collected, or of any penalty claimed to have been collected without authority, or of any sum alleged to have been excessive or in any manner wrongfully collected, until appeal shall have been duly made to the Commissioner of Internal Revenue, according to the provisions of law in that regard, and the regulations of the Secretary of the Treasury established in pursuance thereof, and a decision of the commissioner has been had therein: provided, that if such decision is delayed inore than six months from the date of such appeal, then the said suit may be brought, without first having a decision of the commissioner at any time within the period limited in the next section.”
It will be noticed that this language is of the most comprehensive character — no suit shall be maintained in any court for the recovery of any internal revenue tax, etc. No suit would lie at common law upon an implied assumpsit to recover taxes illegally paid. Collector v. Hubbard, 79 U. S. 1, 20 L. Ed. 272. The plaintiff must follow the statutory method if he would prevail. An appeal to the Commissioner of Internal Revenue is a condition precedent to an action for the recovery of taxes paid. Erskine, Collector, v. Holnbach, 14 Wall. 613, 20 L. Ed. 745; Cheatham v. U. S., 92 U. S. 85, 23 L. Ed. 561. His only right to recover rests upon sections 3220 and 3226. Since that is so, he must comply with their terms, including any regulations made ,by the Secretary of the Treasury, pursuant to the power thereby conferred. The sections of the internal revenue law, incorporated into the oleomargarine act, relate simply and solely to the imposition of the special taxes therein referred to, and the persons upon whom they were to be imposed. The procedure requisite under sections 3220 and 3226, for the return of taxes and penalties, was independent subject-matter, and their applicability to the oleomargarine act was .in no wise impaired or modified, in my judgment, by the fact that they were, not specifically referred to, although other sections were. There is nothing in that act repugnant to sections 3220 and 3226. No method for thé. return or for a suit for the recovery of taxes and penalties illegally.imposed’is provided or even referred to in that act. Section 3226 was intended to, and does, in specific terms, apply to all cases like tlie one at bar, and is of such a comprehensive character that its
In Nichols v. United States, 7 Wall. 122, 129 (19 L. Ed. 125), the importance of the matter under consideration is .discussed, and so clearly that a somewhat lengthy extract is both permissible and instructive :
“The prompt collection of the revenue, and its faithful application, 'is one of the most vital duties oí government. Depending as the government does on its revenue to meet, not only its current expenses, but to pay the interest on its debt, it is of the utmost importance that it should be collected with dispatch, and that the officers of the treasury should he able to make a reliable estimate of means, in order to meet liabilities. It would be difficult to do this, if the receipts from duties and internal taxes* paid into the treasury were liable to he taken out of it. on suits prosecuted in the Court of Claims for alleged errors and mistakes, concerning which the officers charged with the collection and disbursement of the revenue had received no information. Such a policy would be disastrous to the finances of the country, for. as there is no statute of limitations to bar these suits, it would be impossible to tells in advance, how much money would be required to pay the judgments obtained on them, and the result would be that the treasury estimates for any current year would be unreliable. To guard against such consequences, Congress has from time to time passed laws on the subject of the revenue, which not only provide for the maimer of its collection, but also point out a way iii which errors can be corroded. These laws constitute a system which Congress has provided for the benefit of those persons who comida in of illegal assessments of taxes and illegal exactions of duties. In the administration of the tariff laws, as we have seen, the Secretary of the Treasury decides what is due on a specific importation of goods; but, if the importer is dissatisfied with this decision, he can contest the question in a suit against the col-dector, if, before he pays the duties, he tells the officers of the law, in writing, why ho objects to their payment. _
_ “And an equal provision lias been made to correct errors in the administration of "the internal revenue laws. The parly aggrieved can test the question of the illegality of an assessment, or collection of taxes, by suit; but he ■cannot do this until ho has taken an appeal to the Commissioner of Internal Revenue. If the commissioner delays Ms decision beyond the period of fi months from the time the appeal is taken, then suit may be brought at any time within 12 months from the date of the appeal. Thus it will he seen that the person who believes he has suffered wrong at the hands of the assessor or collector can appeal to the corals; but he cannot do this until he.has taken an intermediate appeal to the commissioner, and, at all events, he is ‘barred from bringing a suit, unless he does it within a year from the time the commissioner is notified of his appeal. The object of these different provisions is apparent. While the government is desirous to secure the citizen a mode of redress against erroneous assessments or collections, it says to him: ‘We want all controverted questions concerning the revenue settled speedily, and. if you have complaint to make,1 you must let the Commissioner of Internal Revenue know the grounds of It; but if he decides against you. or fails to decide at all, .yon can test the question in the courts if you bring your suit within a limited period of time.’ ”
I do not concede, and am unwilling’ to hold, that a “system” thus devised by Congress, declaring when and how moneys can be recovered from the United States treasury, can be properly held inapplicable to a revenue act of any kind subsequently passed for the reasons given in Tucker v. Grier, supra. The sections of the internal revenue act, constituting the “system'’ referred to in Nichols v. United States, supra, unless expressly7 excluded, in my judgment, become a part of every internal revenue act. They constitute the general law of the subject, and, since there is nothing in the oleomargarine act repugnant
But, if the use of form 47 by the plaintiff were permissible, the appeal was imperfect in not having indorsed thereon the affidavit and certificate required by the regulations.
The suit was prematurely brought; judgment will be entered accordingly. If' a review is desired, counsel can doubtless agree upon the case; if not, they may come before me on notice to settle it.