Waldron v. Poe, 1 F.2d 932

1 F.2d 932 | W.D. Wash. | 1924

NETERER, District Judge

(after stating the facts as above). Under section 3224, R. S. (§ 5947, C. S.), “no suit for the purpose of restraining an assessment for collection of any tax shall be .maintained in any court.”

It is urged by the defendant that the remedy of the plaintiff is at law “ * * * to pay all taxes and sue to recover it back.” Graham v. Du Pont, 262 U. S. 234, 43 S. Ct. 567, 67 L. Ed. 965; Roebling v. Sturgess (D. C.) 292 F. 1012. The' complainant urges nonobligation on his part, insisting that it is his fundamental right, guaranteed by the Constitution, that no person shall be “deprived of * * * property without due process of law,” and “private property shall not be taken for public use without just compensation. * * * ” He claims not to be contesting the validity of the tax nor enjoining collection; that he seeks to enjoin the distraint of his property for assessment made against another. He alleges that as an individual he is engaged as a merchant dealing in rugs, draperies, etc., under the name of Waldron Company, and that the corporation, to organize which several steps had been taken, had not an entity, no title to the property, and no status in law, and that the assessment sought to be made against it could not be imposed upon his property.

It does appear, however, that there is such confusion of identity, ownership and relationship as to raise an issue which he tenders in his complaint, involving the validity of the tax, it’ the Waldron Company, a corporation, is a myth, there can be no tax, so the validity of the tax and its relation to the property claimed by the plaintiff is the issue, and this, it seems, is clearly within section 3224, R. S., and section 5947, C. S., supra. There is an adequate remedy at law (Act Nov. 23, 1921, c. 136, § 252, as amended by Act March 4, 1923, e. 276, § 1; section 3226, R. S., as amended by Act March 4, 1923, § 2), and an equitable action to enjoin the collection may not be had. Roebling v. Sturgess, supra; Bashara v. Hopkins, Collector (D. C.) 290 F. 592, affirmed (C. C. A.) 295 F. 319. See, also, Graham v. Du Pont, supra. And to the same effect is Regal Drug Corp. v. Wardell, Int. Rev. Col. (this circuit) 273 F. 182. C., B. & Q. R. Co. v. Osborne, 265 U. S. 14, 44 S. Ct. 431, 68 L. Ed. 878, has no application here.

The motion to dismiss is granted.