297 F. 371 | 2d Cir. | 1924
(after stating the facts as above). Section
3224, Rev. Stat. (Comp. St. § 5947), provides that—
“No suit for tbe purpose of restraining tbe assessment or collection of any tax shall be maintained in any court.”
In the recent case of Graham v. Du Pont, 262 U. S. 254, 43 Sup. Ct. 567, 67 L. Ed. 965, the Supreme Court again asserted strong adherence to the prohibitory rigor of 'this statute. Mr. Chief Justice Taft, writing for the court, referred to and analyzed several cases which had been cited in support of the argument that the facts in the Du Pont Case were so extraordinary as to take it out of the prohibition of the statute.
In Dodge v. Osborn, 240 U. S. 118, 36 Sup. Ct. 275, 60 L. Ed. 557, the court, as it had done in several cases previously, applied the statute
In Dodge v. Brady, 240 U. S. 122, 36 Sup. Ct. 277, 60 L. Ed. 560, the procedure was one of peculiar circumstances and cannot be regarded as, in any manner, affecting the force of the provisions of section 3224, supra. The court'repeated that, if the original bill alone were concerned, the suit was brought to enjoin the collection of a tax and the court was without jurisdiction for the reasons stated in Dodge v. Osborn, supra.
The contention of appellant here is that, under section 250 (d) of the Revenue Act of 1921, 42 Stat. E. 265 (Comp. St. Ann. Supp. 1923, '§ 6336%tt), the right of the United States to collect the tax is barred by limitation; that if, by the collector’s procedure of warrant for distraint, the tax shall be collected, then that appellant has no remedy, because, when he made his return on February 28, 1917, the applicable . statutes (i. e., U. S. R. S. § 3220, and U. S. R. S- § 3225 [Comp. St. §§ 5944, 5948]) did not permit recovery by a taxpayer whose return was false or fraudulent and that, as the return of appellant was false, he is now without remedy.
Under paragraph fifth of the complaint, quoted supra, there is no allegation that the return was false. On the contrary, it is asserted that the return was not false or fraudulent, and, in such circumstances, appellant was not debarred by the two statutes to which reference has just been made. As, however, the affidavits disclose that the return was false, we shall not stop at a point of pleading.
“ * * s no suit or proceeding for the collection of any such taxes due under this act or under prior income, excess profits, or war profits tax acts, or of any taxes due under section 38 of such- Act of August 5, 1909, shall he begun, after thei expiration of five years after the date when such return was filed, but this shall not affect suits or proceedings begun at the time of the passage of this act: * * * Provided further, that in the case of a false or fraudulent return with intent to evade tax, or of a failure to file a required return, the amount of tax due may be determined, assessed, and collected, and a suit or proceeding for the collection of such amount may be begun, at any time after it becomes due. * * * ”
It is contended by counsel for the United States that “proceeding,” like “suit,” means some -action or proceeding in court as distinguished from executive action, such as has been undertaken here by the collector.
Cases are cited by both sides as to the meaning of the word “proceeding” in various connections, and counsel for the collector invokes the principle of eiusdem generis in. support of the argument, in effect, that “suit” and “proceeding” mean the same thing.
To enforce the collection of the tax an action or suit by or on behalf of the government in the courts is far less usual than procedure by way of warrant for distraint or other executive action. Certainly, where the taxpayer has property which may be levied upon, the executive method is more speedy and summary and the one to which resort is most usually had. It would, indeed, be strange if there were no statutory limitation in respect of proceedings by the collector, such as this, and yet a statutory limitation in regard to suits brought by or on behalf of the government. When the statute provided that.“this shall not affect suits or proceedings begun at the time of the passage of this act,” its purpose manifestly was in no manner to affect executive proceedings then in progress as well as law suits then pending. Looking also at the proviso relating to false or fraudulent returns with intent to evade tax, it must be clear that the Congress had in mind that there should be no time limitation against executive action any more than against suits commenced in the courts. “Suit” or “proceeding,” when used throughout this section of the statute, manifestly have the same meaning.
It is argued on behalf of appellee that it is not to be supposed that a determination or assessment may be made on the last day of the five years after the return has been filed and yet that on the same day that the time to commence the suit or proceeding expires.
The statute, however, requires the determination or assessment within five years after the return is filed and the commencement of the suit or proceeding to collect the tax to be begun “after the expiration” of the five years.
‘ We have not overlooked the quotation containing the remarks taken from the report of Senator Penrose, chairman of the Committee on Finance (Report No. 275, 67th Congress, First Session); but we think the expressions there as to suits do not bear the construction which appellee seeks to place upon them; and we need not endeavor to analyze what may be casual illustrations in a report, when the construction of the statute seems entirely plain to us.
We hold, therefore, that the word “proceeding” applies in the case at bar and that the action of the collector is contrary to the provisions of the statute, in that the proceedings were begun after the expiration of five years.
In view of the provisions of the statutes, supra, and the fact that the tax was filed when these statutes were in effect, it is contended that appellant could not recover the tax if it is collected. For this position, Camp Bird, Ltd., v. Howbert, Collector, 249 Fed. 27, 161 C. C. A. 87,
Both sections 3220 and 3225 were amended by the Revenue Act of 1918, 40 Stat. E. 1145 (Comp. St. Ann. Supp. 1919, §§ 5944, 5948), so as to read as follows:
“Sec. 3220. The Commissioner of Internal Revenue, subject to regulations prescribed by the Secretary of the Treasury, is authorized to remit, refund, and pay back all taxes erroneously or illegally assessed or collected, all penalties collected without authority, and all taxes that appear to be unjustly assessed or excessive in amount, or in any manner wrongfully collect-g<j= * * *»
“Sec. 3225. When a second assessment is made in case of any list, statement, or return, which in the opinion of the collector or deputy collector was false or fraudulent, or contained any understatement or undervaluation, such assessment shall not be remitted, nor shall taxes collected under such assessment be refunded, or paid back, or recovered by any suit unless it is proved that such list, statement, or return was not willfully false or fraudulent and did not contain any willful understatement or undervaluation.”
It will be seen from these amendments, inter alia, that the taxpayer who made a false return could begin appropriate proceedings to recover illegally collected taxes if his return was not willfully false or fraudulent.
As these amendments of the act of 1918 were remedial in character, they were available to appellant. It will be noted that there is no provision in these amendments that the remedy is prospective only. Bearing in mind that the meaning of the word “false,” in these tax statutes, was settled and well understood, as pointed out, supra, the purpose of the statute plainly was to give to the taxpayer the remedies which either had been denied to him under the statutes as they stood in 1916, or at best 'were open to doubt and controversy. 1
“The complainant is given the right now to pay the tax, and sue to recover it back, and in such a suit to raise the questions as to the value of the stock and the amount of the resulting tax and also as to the har of time against the assessment which he attempted to raise in the bill.” (Italics ours.)
Under section 252 (a) of the Act of March 4, 1923, the credit or refund shall not be allowed after five years from the date when the return was due “unless before the expiration of such five years a claim therefor is filed by the taxpayer, or unless before the expiration of two years from the time the tax was paid a claim therefor 'is filed by the taxpayer.”
Under section 3226, as amended by section 1318 of the Revenue Act of 1921 (Comp. St. Ann, Supp. 1923, § 5949), it was provided that—
“No suit or proceeding shall be maintained in any court for the recovery of any internal revenue tax alleged to have been erroneously or illegally assessed or collected, * * * until a claim for refund or credit has been duly filed with1 the Commissioner of Internal Revenue. * *■ * ”
'While the proceeding by warrant for distraint in the case at bar was instituted before the passage of this act, nevertheless the tax concerned has not as yet been collected. It will therefore be open to appellant, upon'compliance with statutory procedure, to present his contentions in respect of the statutory bar when and if he pays the tax or when and if the tax shall be collected.
We think it is premature to express our opinion as to the result of future proceedings, if any, for, in addition to the unwisdom of discussing academically questions of law, we cannot predict in what form a record, if any, may reach us and whether or not some interesting questions which suggest themselves may then appear.
We are, however, unable to find any distinction in principle between the case at bar and the Du Pont Case, supra, and, in these circumstances, it is, of course, our duty to follow the Du Pont Case, as we understand it. See, also, Cadwalader and Tyson, Executors, v. Sturgess, as. Collector (C. C. A. Third Circuit) 297 Fed. 73, recently decided; Sigman v. Reinecke, as Collector of Internal Revenue (C. C. A. Seventh Circuit) 297 Fed. 1005, recently decided.
Decree affirmed, without costs.