United States v. Grand Rapids & I. Ry. Co.

239 F. 153 | W.D. Mich. | 1915

SESSIONS, District Judge.

A careful study and analysis of the statute here involved and an examination and consideration of the applicable and controlling authorities lead to the following’conclusions :

[1] 1. The three-year clause of the fifth subdivision of section 38 of the 1909 Excise Daw is not a limitation upon the right of the government to sue for unpaid taxes, but, at most, js a limitation upon the right of the collecting officers to make assessment and to enforce payment by the summary statutory proceedings.

[2] 2. In the collection of the taxes imposed by the statute, the government is not confined to the summary proceedings therein provided, but may resort to a plenary suit.

[3] 3. “Where a tax of a fixed percentage (like the one here sought to be recovered) is imposed by the statute on a subject or object which is so definitely described in the statute that its amount or value, on which the fixed per centum is to be calculated, can be ascertained and determined, on evidence, by a court, a suit for the tax will lie, without an assessment.” United States v. Tilden, 28 Fed. Cas. 161, No. 16,519; United States v. Hazard, 26. Fed. Cas. 251, No. 15,337; Dollar Savings Bank v. United States, 19 Wall. 227, 22 L. Ed. 80; United States v. Chamberlin, 219 U. S. 250-264, 31 Sup. Ct. 155, 55 L. Ed. 204; King v. United States, 99 U. S. 229, 25 L. Ed. 373; United States v. Reading R. R., 123 U. S. 113, 8 Sup. Ct. 77, 31 L. Ed. 138; United States v. Cobb (C. C.) 11 Fed. 76; United States v. M. H. & O. R. Co. (C. C.) 17 Fed. 719; 22 Cyc. 1670, and cases there cited; Eliot Nat. Bank v. Gill (D. C.) 210 Fed. 933, affirmed by Circuit Court of Appeals of First Circuit (December 21, 1914), 218 Fed. 600, 134 C. C. A. 358.

The demurrer will be overruled, and the defendant will be given 15 days within which to. plead to the declaration.

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