The main question is the power of the court to interfere with the collection of the tax. Congress, having full control of the jurisdiction and powers of the District Court, has, by Revised Statutes, § 3224 (26 USCA § 154; Comp. St. § 5947), forbidden it to interfere in thе” collection of any taxes. The contention that the present taxes are barred by the statutе of limitations and therefore to be .enjoined as a whole I cannot sustain, because I think that a tax, though claimed to be barred, is still a tax, and cannot be interfered with by the court under R. S. § 3224. One exceptiоn, however, Congress has made to this statute. This is done in section 274a of the Act of 1926 (26 USCA §’ 1048), expressly modifying that section by permitting injunction pending an inquiry before the Board of Tax Appeals. I disagree to the proрosition that the injunction is to protect the entire controversy before the Board of Tax Apрeals. It seems that that Board has authority to audit a tax claim completely, and even find where оverpayments have been made and direct refunds thereof. I do not think, however, that the right to interferе by injunction goes any further than to protect against the collection of the deficiency discussed in section 274 and the preceding section. The difficulty I have in the case is in arriving at a clear idea about what should be considered deficiency in the present effort to collect. Congress has dеfined deficiency in section 273 (26 USCA § 1047), having, first, reference to eases in which an amount “is
If any overpayment results by enforcing this policy, it can be recovered under the judgment of the Board of Tax Appeals. The only thing that the court is to restrain is the collection of contested deficiencies after-wards set up by the Commissioner of Internal Revenue during their hearing before the Board of Tаx Appeals. It is said, however, that in this case this procedure would result in the entire loss of $58,000 not protected by the injunction of this court from collection, which could not be recovered as a refund, though really barred by limitation. This involves a construction of section 1106 of the act (26 USCA §' 1249). While this court at present has no concern with the question of refund, and to express an opinion may be gratuitous, I am neverthеless of the opinion that this section ought to be so construed as to prohibit the refund of overpаyments voluntarily made. The word “voluntarily” does not occur in the section, but it seems to me, in connection with the entire spirit of the system of collection and the policy of limitation, such a construction will have tо be given to it, and that a coerced overpayment may be refunded, although the taxes are sо paid after being barred. The government having emphatically contended in its argument that there is no remedy in the court to prévent collection of a barred tax, and the court having indorsed that contеntion here and now, it seems to me the government will be estopped hereafter from contending thаt prevention was the taxpayer’s remedy. .
Having this view of the matter, somewhat hastily formed but still clearly hеld, I think, it appearing from the pleadings that the contention sought to be enjoined includes none of thе deficiency indicated in this opinion, but only the remaining part of the tax originally indicated in the return, an injunction ought not to issue against the collection of the same.