266 F. 876 | 8th Cir. | 1920
This is an action by defendant in error, hereafter plaintiff, to recover from plaintiff in error, hereafter defendant, an income tax levied under Act Oct. 3, 1913, c. 16, 38 Stat. 166, and paid under protest. Plaintiff had judgment in the trial court and defendant brings error.
“What the Commissioner of Internal Revenue thought about the assessment had been obtained upon full statement of the facts, and it would have been a useless form again, after the tax was paid, to appeal to the Commissioner and obtain the same judgment. The reason for the appeal did not exist, and hence the appeal after tax was paid was not necessary.”
The following cases sustain our ruling: Schwarzchild, etc., Co. v. Rucker (C. C.) 143 Fed. 656; San Francisco Sav. & Loan Society v. Carey, 2 Sawy. 333, Fed. Cas. No. 12,317; Grier v. Tucker (C. C.) 150 Fed. 658; Tucker v. Grier, 160 Fed. 611, 614, 615, 87 C. C. A. 513; De Bary et al. v. Dunne (C. C.) 162 Fed. 961.
Counsel for defendant cites Savings Bank v. Blair, 116 U. S. 200, 6 Sup. Ct. 353, 29 L. Ed. 657; Stewart v. Barnes, 153 U. S. 456, 14 Sup. Ct. 849, 38 L. Ed. 781, and Hastings v. Herold (C. C.) 184 Fed.
It was decided in the case of Eisner v. Macomber, 252 U. S. 189, 40 Sup. Ct. 189, 64 L. Ed. -, that Congress had no power to tax, without apportionment, a true slock dividend, made lawfully and in good faith, or the accumulated profits behind it, as income of the stockholder. See, also, Lynch v. Turrish, 247 U. S. 221, 38 Sup. Ct. 537, 62 L. Ed. 1087, and Towne v. Disner, 245 U. S. 418, 38 Sup. Ct. 158, 62 L. Ed. 372, L. R. A. 1918D, 254. As both parties agreed that the transaction was a stock dividend,, the judgment must be affirmed, unless another contention first made in this court by the defendant shall be sustained.
Judgment below affirmed.