8 W. Va. 46 | W. Va. | 1874
As admitted by the appellee, in argument, although this action is in form, as against Kelley, indebitatus as* sumpsit, it is virtually against the United States, under the ninth and nineteenth sections of the amendatory internal revenue act of July 13, 1866, chapter one hundred and eighty-four, Stat. at Large, vol. 14, pages 111, 152. Section nineteen declares: “That no suit shall be maintained in any court for any tax alleged to have been erroneously or illegally assessed or 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 said commissioner shall be had thereon, unless such suit shall be brought within six months from the time of said decision, or within six months from the time this act takes effect: Provided, That if said decision shall be delayed more than six months from the date of such appeal, the said suit may be brought at any time within twelve months from the date of such appeal.”
Section nine prescribes: “That the commissioner of internal revenue, subject to regulations prescribed by the Secretary of the Treasury, shall be, and is, hereby, authorized, on appeal to him made, to remit, refund, and pay back' all taxes erroneously or illegally assessed or
Mr. Hubbard’s object, in this action, is to recover back cei’tain money paid by him to collector Kelley as income tax upon his salary as clerk of the House of Delegates.
Since the decision of the Supreme Court of the United States in the case of The Collector v. Hubbard, 12 Wall., (Sup. Ct. U. S.,) 1, and the cases therein cited, it is not an open question that such action will lie against the Collector, to recover back the amount of an illegal tax paid into the public treasury.
'And I am of opinion that such an action will be maintained although the tax was not paid under protest, provided the tax-payer had taken an appeal to the commissioner of internal revenue, as required by the act of 13th July, 1866.
Justice Clifford in delivering the opinion of the court in the case of The Collector v. Hubbard, 12 Wall. (Sup. Ct. U. S.) 13, said, “prior to the passage of the act of the 13th of July, 1866, it is quite clear that the tax-payer, if he was illegally assessed, might maintain an action of assumpsit, against a collector to recover back the amount, if he paid it under protest, although he had not taken any appeal to the commissioner of internal rev-nue. Such were the views of this court in the case of Philadelphia v. The Collector, 5 Wall. (Sup. Ct. U. S.) 731, and no doubt is entertained that the decision was entirely correct; but it is a great mistake to suppose that the right to maintain the action, as there conceded, was founded in the theory that the collector held money in his hands belonging to the plaintiff, which he was bound
“Remedies of the kind, given by Congress, may be changed or modified, or they may be withdrawn altogether, at the pleasure of the law-maker as the tax-payer cannot have any vested right in the remedy granted by Congress, for the correction of an error in taxation.”
“Suits for such causes of action are absolutely prohibited, until the tax-payer shall appeal to the commissioner of internal revenue, and until the appeal has been decided, unless the decision is postponed longer than six months, in which case he is at liberty to sue within one year from the time when his appeal was taken.”
In the case of Nichols v. United States, 7 Wall. (Sup. Ct. U. S.,) 122, (cited in The Collector v. Hubbard,) Mr. Justice Davis, delivering the opinion of the Court, (Id. 126,) said:
“The immunity of the United States from suit is one of the main elements to be considered in determining the merits of this controversy. Every government has an inherent right to protect itself against suits, and if, in the liberality of legislation, they are permitted, it is only on such terms and conditions as are prescribed by statute.”
Again, at page 130, he said: “The party aggrieved can test the question of the illegality of an assessment, or collection of taxes, by suit; but he cannot do this until he has taken an appeal to the commissioner of internal revenue. If the commissioner delays his decision beyond the period of six months from the' time the appeal is taken, then suit may be brought at any time within twelve months from the date of the appeal.. Thus, it will bo seen, that the person who believes he has,
Such being the adjudications, we may consider it settled, that:
First. Suits against collectors for taxes illegally collected, under the internal revenue laws, and paid into the Treasury of the United States, are, absolutely prohibited, until the tax-payer shall have duly made an appeal 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 until the appeal has been decided, unless the decision is postponed longer than six months, in which’ case he is at liberty to sue within one year from the time when his appeal was taken.
Second. The right to sue, in such cases, springs from the liberality of legislation, as every government has the inherent right to protect itself against suits; and the suit can be maintained only on such terms and conditions as are prescribed by statute.
Third. The tax-payer, to succeed in such a suit, must show that he has complied with the terms and conditions prescribed by statute.
To the declaration of the plaintiff, which is composed ■of the common counts in assumpsit, the defendant pleaded the general issue, and also filed a special plea, in writing, that the action was not brought within six months from the time of the adverse decision of the commissioner of internal revenue; to both of which pleas the plaintiff replied generally.
To maintain the issues, on his part, it was necessary for the plaintiff to show.
First. That he had been illegally assessed.
Second. That the defendant, as collector, had collected ■from him the illegal tax.
Third. That an appeal had been duly made by him 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.
Fourth. That a decision of the commissioner had been had thereon, if there had in fact been such a decision.
Fifth. That the suit had been brought within six months from the time of said decision; or, if the decision had been delayed more than six months from the date of such appeal, then he must show that the decision had been so delayed, and that he had brought the suit within twelve months from the date of such appeal.
It appears from the first bill of exceptions, that, (he moneys mentioned in the bill of particulars annexed to the declaration were paid as therein stated to the defendant as collector of United States Revenue, First District, West 'Virginia, as income tax assessed under United States Internal Revenue law on plaintiffs salary, as clerk of the House of Delegates of the West Virginia Legislature, paid out of the State Treasuiw, and that the defendant had paid the same into the Treasury of the
It appears from the second bill of exceptions, that,, the plaintiff, having been sworn as a witness on his own behalf, to maintain the issues on his part,”' stated that he had appealed to the commissioner of internal revenue, to refund him the taxes mentioned in the bill of particulars, annexed to the declaration herein, and stated, at the same time, that the said appeal was in writing.” The defendant objected to, and moved the court to reject and exclude the parol testimony of the plaintiff that he had appealed, as improper,, under objection, to be considered in evidence, unless the original written appeal, or a duly certified official copy, was produced and put in evidence by the plaintiff, or sufficient cause be shown why such copy or original is not so produced and put in evidence. But the court overruled the motion and admitted the parol evidence, and the defendant excepted to the ruling of the court.
It is not enough for the plaintiff to show merely that he had taken an appeal, but he must show that the appeal had been duly made to the commissioner “according to the provision of law in that regard, and the regulations of the Secretary of the Treasury established in pursuance thereof.”
In order to enable the court to determine whether the appeal had been duly made according to the provisions of the law, &c., it was incumbent upon the plaintiff to produce the best evidence. That being so, it is obvious that, as the appeal was made in writing, as testified to by himself, the written appeal was the best evidence of which the case was susceptible, and if it was not in his power to have produced the original, it was nevertheless his duty to have produced an authentic copy thereof, or accounted for its absence. I am, therefore, of opinion that the court erred in admitting the parol evidence in that respect, without good cause having been shown for the absence of the written appeal or an authentic •copy thereof.
As to the third bill of exception : It appears that the plaintiff offered in evidence a letter from the commissioner of internal revenue stating that the plaintiffs claim for refunding of $211.67 has been rejected: The letter was dated July 22, 1871. The defendant objected to its introduction as inadmissible until the original appeal was produced, or its absence accounted for. The court overruled the objection and admitted the letter in evidence.
The letter has not been connected by any evidence with the subject matter of this action. It may possibly have been intended as a notice to the plaintiff that a decision had been made by the commissioner on the appeal, but it does not appear to have been so intended, either from its face or from other evidence. But suppose it was intended as a notice of a decision of the appeal, it does not indicate when the decision was made. For ought the court knows, the decision, if any, may have been made months before the letter was written, and the plaintiffs limit for bringing his action may have expired before action brought. This, in one aspect of the case, is material, because the statute requires the suit to be brought within sixmonths from the time of said decision, &c. There is nothing in the record that shows either the time of making an appeal to the commissioner, or the date oí his decision, if he made one, unless the letter is to be taken as the decision of the commissioner upon the appeal and I do not think it can be so taken. In the absence of evidence to the contrary, the presumption is that the commissioner
JudgMENT Keveesed, New Teiai. Awaeded akd-Cause. KemaNded..