242 F. 492 | 3rd Cir. | 1917
We need hardly say that without statutory permission no suit to recover a federal tax can be maintained. Moreover, the statutes on this subject must be strictly obeyed; they lay down the conditions and
On October 22, 1913, after McCoach had retired from office, the company filed a supplemental affidavit with the Commissioner in support of its petition to abate the tax of 1912, and on the same day asked him to reopen and reconsider his refusal to refund the tax of 1909. Ou October 27, 1913, this request to reopen was granted, and at the same time the Commissioner asked for additional information and affidavits in reference to the claims for the refund of the taxes for 1909, 1910, and 1911, and also in reference to the petition to abate the tax of 1912. Accordingly an affidavit was furnished on January 14, 1914. In February, 1914, the petition for abatement was refused, and apparently at the same time the claims for the refund of the taxes for 1909, 1910, and 1911, were also refused; for on February 13, 1914, Rederer notified the company that these claims, and also the petition for abatement, had been examined and rejected by the Commissioner. In March, 1914, a claim to refund the tax for 1912 was presented, and was refused soon afterward. The present suit was brought on June 29, 1914, and sought to recover from Tederer the taxes for the four years.
“No suit, action, or other proceeding, lawfully commenced by or against the head of any department or bureau or other officer of the United States in his official capacity, or in relation to the discharge of his official duties, shall abate by reason of his death, or the expiration of his term of office, or his retirement, or resignation, or removal from office; but, in such event, the court, on motion or supplemental petition filed, at a.ny time within twelve months thereafter, showing a necessity for the survival thereof to obtain a settlement of the questions involved, may allow the same to be maintained by or against his successor in office, and the court may make such order as shall be equitable for the payment of costs.”
The only “suit, action, or other proceeding” that could have been begun against McCoach while he was in office would have been a suit for the taxes of 1909 and 1910; but no such suit was brought, and it cannot be successfttlly contended that a mere claim for refund,
For these reasons, and for those to be found in Judge Thompson’s opinion, the judgment is affirmed.