SEC. 3225.563 [As amended, reenacted without change by Sec. 1323, Act of Nov. 23, 1921.] 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

the collection of internal revenue taxes. Kensett v. Stivers, (C. C., S. D. N. Y. 1880) 10 Fed. 517; Snyder v. Marks, (1883) 109 U. S. 189; Miles v. Johnson, (C. C., D. Ky. 1893) 59 Fed. 38; Calkins v. Smietanka, (D. C., N. D. Ill. 1917) 240 Fed. 138; Nichols v. Gaston, (C. C. A., First Cir. 1922) 281 Fed. 67; Dodge v. Osborn (Com.), (1916) 240 U. S. 118, affirming, Id., (1915) 43 App. D. C. 144.

562 (g) Sec. 3224, R. S., prohibits a suit to enjoin the assessment or collection of income taxes imposed by the Act of 1917, notwithstanding the fact that the statute of limitations bars the assessment and collection thereof. Bashara v. Hopkins (Col.), (C. C. A., Fifth Cir. 1923) 295 Fed. 319, affirming Id., (D. C., N. D. Tex. 1923) 290 Fed. 592.

562 (h) A taxpayer after filing a claim for abatement of income taxes assessed under the Acts of 1916, 1917 and 1918, and later a bond as requested by the collector, cannot after the expiration of six months from the date of the filing of the claim, enjoin the collection of said taxes. Sec. 3224, R. S., prohibits the filing of a suit to enjoin the collection of any tax and Sec. 3226, R. S., offers a complete remedy by payment, the filing of a claim, and suit to recover. Union Fishermen's Co-op. Packing Co. v. Huntley (Col.), (D. C., D. Oregon 1923) 285 Fed. 671.

562 (i) The word "restraining" in Sec. 3224, R. S., is used in its broad popular sense of hindering or impeding as well as prohibiting or staying, and is not limited in its application to suits for injunctive relief. Hence, a suit cannot be maintained to set aside and annul a sale of a taxpayer's property to satisfy the tax which was bid in by the collector for the United States, because to allow such a suit would be in effect to restrain the collection of the tax. Gouge et al. v. Hart (Col.), (D. C., W. D. Va. 1917) 250 Fed. 802.

562 (j) Officers of the United States cannot waive the prohibition of Sec. 3224, R. S. Gouge et al. v. Hart (Col.), (D. C., W. D. Va. 1917) 250 Fed. 802.

562 (k) While the remedy of a taxpayer from whom an internal revenue tax is illegally exacted ordinarily is to pay the tax and file suit for the recovery thereof, and while he may not ordinarily restrain the assessment or collection of the tax, if the facts clearly show that the rights and property of the taxpayer will be utterly destroyed, if he is compelled to pay the tax and file suit for the recovery, a court of equity may take jurisdiction and grant relief. Acklin v. People's Savings Ass'n, (D. C., N. D. Ohio 1923) 293 Fed. 392.

562 (1) The averment that a taxing statute is unconstitutional does not per se avoid the inhibition of Sec. 3224, R. S. Bailey (Col.) v. George, (1922) 259 U. S. 16, reversing Id., (D. C., N. D. N. C. 1921) 274 Fed. 639.

562 (m) Sec. 3224, R. S., prevented an action to enjoin the collector from collecting income taxes assessed under the Act of 1918, although the taxpayer was not notified that the proposed assessment was under consideration by the Commissioner and was not given an opportunity to be heard. Black v. Rafferty (Col.), (D. C., E. D. N. Y. 1923) 287 Fed. 937.

562 (n) A taxpayer cannot delay payment of a tax until the statute of limitations bars his right to sue to recover it, by filing a claim for abatement after as

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

sessment, and thereby create a case so extraordinary and entirely exceptional as to render Sec. 3224, R. S., inapplicable. He may pay the tax before the statute runs and file suit for the recovery thereof. Graham (Ex-Col.) v. Du Pont, (1923) 262 U. S. 234, reversing Id., (C. C. A., Third Cir. 1923) 284 Fed. 1017, and Id., (D. C., D. Del. 1922) 283 Fed. 301.

562 (0) Sec. 406 of the Act of 1919 provides that the estate tax shall be due one year after the death of the decedent, and Sec. 408 provides that the Collector shall proceed to collect the tax if it is not paid within 180 days after it is due. Sec. 3224, R. S., prohibits a suit to restrain the Collector from proceeding to collect this tax after it is due but before the expiration of 180 days after it is due. Page (Col.) v. Polk (C. C. A., First Cir. 1922) 281 Fed. 74, reversing Id., (D. C., D. Rhode Island 1921) 276 Fed. 128. 562 (p) Sec. 3224, R. S., applies to a taxpayer only, and not to another individual whose property is being distrained by the collector to satisfy the taxes of the taxpayer, under the belief that the property belongs to the taxpayer. Long v. Rasmussen (Col.), (D. C., D. Mont. 1922) 281 Fed. 236.

66

562 (q) Sec. 3224, R. S., prohibits a suit to enjoin the assessment or collection of a penalty which, under the Act imposing it, provides that it shall be added to the tax" and "collected at the same time and in the same manner" and as a part of the tax. Kohlhamer v. Smietanka (Col.), (D. C., N. D. Ill. 1917) 239 Fed. 408.

562 (r) Sec. 3224, R. S., prohibits a suit to enjoin the collector from issuing a writ of distraint after the expiration of the five-year period mentioned in Sec. 250 (d) of the Act of 1921. Cadwalader v. Sturgess (Col.), (C. C. A., Third Cir. 1924) 297 Fed. 73, affirming Roebling v. Sturgess (Col.), (D. C., D. N. J. 1923) 292 Fed. 1012, Certiorari denied, Id., (1924)

S.

562 (s) Sec. 3224, R. S., did not prevent a suit by eight members of the Chicago Board of Trade, out of a membership of 1610, on behalf of themselves and all other members, to enjoin the Secretary of Agriculture, the United States District Attorney for the Northern District of Illinois, the Board of Trade, its president, vice-president and directors, the Commissioner of Internal Revenue, and the Collector of Internal Revenue, from enforcing the Future Trading Act, approved Aug. 24, 1921, such act imposing a heavy criminal penalty for non-payment of the tax on each of many daily transactions which occurred in the ordinary business of the members of the Board of Trade. Hill v. Wallace, (1921) 259 U. S. 44.

562 (t) Sec. 3224, R. S., prohibits a suit to enjoin a collector from taking steps to compel the production of a taxpayer's books. The word assessment" used in this section includes the preliminary investigation as well as the final assessment. Calkins v. Smietanka (Col.), (D. C., N. D. Ill. 1917) 240 Fed. 138.

562 (u) Sec. 3224, R. S., does not prohibit a suit to restrain the assessment or collection of fines and penalties imposed by the Commissioner of Internal Revenue under the terms of the National Prohibition Act, where such fines and penalties are imposed for alleged criminal acts without notice or hearing. Kausch v. Moore (Col.), (D. C., E. D. Mo. 1920) 268 Fed. 668; Thorne v. Lynch

list, statement, or return was not wilfully false or fraudulent and did not contain any wilful understatement or undervaluation.

SEC. 3226.564 [Amended by Sec. 1014, Act of June 2, 1924.] No suit or proceeding shall be

(Col.), (D. C., D. Minn. 1921) 269 Fed. 995; Connelly v. Gardner (Col.), (D. Č., E. D. N. Y. 1921) 272 Fed. 911; Ledbetter v. Bailey (Col.), (D. C., W. D. N. C. 1921) 274 Fed. 375; Middleton v. Mee (Col.), (D. C., D. S. D. 1921) 277 Fed. 492; Lipke v. Lederer (Col.), (1922) 259 Ú. S. 557, reversing Id., (D. C., E. D. Penn. 1921) 274 Fed. 493; Regal Drug Corp. v. Wardell (Col.), (1922) 260 U. S. 386, reversing Id., (C. C. A., Ninth Cir. 1921) 273 Fed. 182; Fontenot (Col.), v. Accardo, (C. C. A., Fifth Cir. 1922) 278 Fed. 871, affirming Id., (D. C., E. D., D. La. 1920) 269 Fed. 447; Pool v. Walsh (Col.), (C. C. A., Ninth Cir. 1922) 282 Fed. 620; Jakovich v. Mager (Col.), (C. C. A., Seventh Cir. 1922) 283 Fed. 980. Contra: Wassell v. Lederer (Col.), (D. C., E. D. Penn. 1921) 274 Fed. 489; Kelly v. Lewellyn (Col.), (D. C., W. D. Penn. 1921) 274 Fed. 108; Pumilli v. Riordan (Col.), (D. C., W. D. N. Y. 1921) 275 Fed. 486; Violette v. Walsh (Col.), (C. C. A., Ninth Cir. 1922) 282 Fed. 582, affirming Id., (D. C., D. Mont. 1921) 272 Fed.

1014.

562 (v) Notwithstanding the language of Sec. 250 (d) of the Act of 1921, Sec. 3224, R. S., prohibits a suit to enjoin the collection of a tax by distraint proceedings, where the assessment is made before the expiration of five years, and the distraint proceedings are instituted after the five-year period. Sigman v. Reinecke (Col.), (C. C. A., Seventh Cir. 1924) 297 Fed. 1005.

562 (w) Sec. 3224, R. S., prohibits an injunction against the collector to enjoin him from collecting taxes by distraint, although notice was not given, demand for the payment thereof was not made, and the warrant of distraint was not issued within five years after the return was filed. Hernandez (Col.) v. McGhee, (C. C. A., Eighth Cir. 1923) 294 Fed. 460; Seaman v. Bowers (Col.), (C. C. A., Second Cir. 1924) 297 Fed.

371.

562 (x) Sec. 3224, R. S., prohibits an injunction against the collector to restrain the issuance of a warrant of distraint, where the taxes were assessed and demand for payment was made within five years after the return was filed, but the warrant of distraint was not issued within the five-year period. Witherbee v. Durey, (D. C., N. D. N. Y. 1924) 296 Fed. 576.

562 (y) A member and stockholder of a building and loan association may maintain a suit to restrain the association from voluntarily making income tax returns and paying the tax thereon, on the ground that it is exempt, notwithstanding the determination may not be binding on the government. Acklin v. People's Savings Ass'n, (D. C., N. D. Ohio 1923) 293 Fed. 392.

562 (z) A suit is not maintainable against a trust company, which holds collateral securing the complainant's loans, to enjoin it from delivering such collateral to the collector of internal revenue who is attempting to seize the same under a warrant of distraint for un

paid income taxes of the complainant. To grant an injunction would in effect violate Sec. 3224, R. S. Seaman (Col.) v. Guaranty Trust Co., (D. C., S. D. N. Y. 1924) Fed.

563 (a) Repealed by Sec. 1015, Act of 1924, which reads:

SEC. 1015. Section 3225 of the Revised Statutes, as amended, is repealed and any claim for credit or refund of taxes imposed by the Revenue Act of 1916, the Rev

maintained in any court for the recovery of any internal-revenue tax alleged to have been erroneously or illegally assessed or collected, or of any penalty claimed to have been collected without authority, or of any sum alleged to have

enue Act of 1917, the Revenue Act of 1918, the Revenue Act of 1921, or any such Act as amended, heretofore denied in whole or in part because of the provisions of such section may be reopened and decided without reference to its provisions.

563 (b) When a corporation proves that an understatement or undervaluation was made unintentionally, Sec. 3225 R. S. does not bar recovery. Howbert (Col.) v. Camp Bird Ltd., (1918) 248 U. S. 590, reversing Id., (C. C. A., Eighth Cir. 1918) 249 Fed. 27.

564 (a) Sec. 3226 R. S. requires the filing of a claim for refund as a condition precedent to suit to recover taxes erroneously and illegally assessed and paid. Suit arose under the Act of 1913. Dodge v. Osborn (Com.), (1916) 240 U. S. 118, affirming Id., (1915) 43 App. D. C. 144. In Dodge v. Brady (Col.), (1916) 240 U. S. 122, later proceedings in the above case, the Supreme Court, due to the exceptional circumstances, held that there was no reversible error by the lower court in giving judgment against the taxpayer on the merits, where he sued to recover taxes paid, but made no allegation that a claim for refund had been filed. The questions on the merits were disposed of adversely to his contentions in Brushaber v. U. P. R. R. Co., (1916) 240 U. S. 1.

Contra: Lormis (Col.) v. Wattles, (C. C. A., Eighth Cir. 1920) 266 Fed. 876. In Black v. Bolen (Col.), (D. C., W. D. Okla. 1920) 268 Fed. 427, it was held that it was not necessary to file a claim for refund before bringing suit to recover taxes erroneously and illegally assessed and paid, where the Commissioner in rejecting the claim for abatement told the taxpayer it would be unnecessary to file claim for refund. Writ of error dismissed by defendant in error under rule 24. Id., (C. C. A., Eighth Cir. 1921) 277 Fed. 1013.

564 (b) The presentation of a claim for refund to the Commissioner of Internal Revenue is a condition precedent to suit by a taxpayer. Stuart v. Barnes, (C. C., E. D. Penn. 1890) 43 Fed. 281; Commissioners of the Sinking Fund v. Buckner, (C. C., D. Ky. 1891) 48 Fed. 533; Erskine v. Hohnback, (1872) 14 Wall. 613; U. S. v. Real Estate Savings Bank, (1882) 104 U. S. 728; Kings County Sav. Inst. v. Blair (Col.), (1886) 116 U. S. 200; Weaver v. Ewers, (C. C. A., Eighth Cir. 1912) 195 Fed. 247, reversing Id., (C. C., S. D. Iowa 1910) 182 Fed. 713; Hastings v. Herold, (C. C., D. N. J. 1910) 184 Fed. 759; Public Service Ry. Co. v. Herold (Col.), (D. C., D. N. J. 1915) 219 Fed. 301; State Line & S. Ry. Co. v. Davis, (D. C., M. D. Penn. 1915) 228 Fed. 246; New York Mail & News Trans. Co. v. Anderson (Col.), (C. C. A., Second Cir. 1916) 234 Fed. 590; Maryland Casualty Co. v. U. S., (1920) 251 U. S. 342; Rock Island, A. & L. R. R. v. U. S., (1920) 254 U. S. 141; Violette v. Walsh, (Col.), (C. C. A., Ninth Cir. 1922) 282 Fed. 582, affirming Id., (D. C., D. Mont. 1921) 272 Fed. 1014, Certiorari denied, (1923) 260 U. S. 745.

564 (c) When a corporation is entitled to recover taxes erroneously assessed and paid under Sec. 38, Act of 1909, it is also entitled to recover penalty and interest which it may have paid in connection therewith. Camp Bird, Ltd. v. Howbert (Col.), (C. C. A., Eighth Cir. 1919) 262 Fed. 114, Certiorari denied, (1920) 252 U. S. 579.

564 (d) To recover taxes erroneously assessed and paid,

been excessive or in any manner wrongfully collected until a claim565 for refund or credit has been duly filed with the Commissioner of Internal Revenue, according to the provisions of

the remedy is a suit against the collector who erroneously collected the taxes, and not against his successor in office. The basis of the suit is assumpsit on an implied contract. The taxes involved were imposed by Sec. 38, Act of 1909. Phila. H. & P. R. Co. et al. v. Lederer (Col.), (D. C., E. D. Penn. 1917) 239 Fed. 184.

564 (e) Authority to sue the collector to recover taxes erroneously assessed and paid is not exclusive, but the taxpayer may sue the United States directly. Suit for taxes paid under Sec. 38, Act of 1909. U. S. v. Emery, Bird, Thayer Realty Co., (1915) 237 U. S. 28, affirming Id., (D. C., W. D. Mo., W. D. 1912) 198 Fed. 242.

564 (f) Where a collector of internal revenue erroneously assessed a taxpayer as an association and not as a trust as he should have done, in a suit by the taxpayer to recover the tax erroneously assessed, the collector may retain what he should have assessed against the taxpayer as a trust. Malley (Col.) v. Crocker, (1919) 249 U. S. 223.

564 (g) In a suit to recover taxes assessed and paid under Sec. 38, Act of 1909, it was held that when the terms of protest are understood and sufficiently expressed to be brought to the notice of the government, suit can be brought to recover. Abrast Realty Co. v. Maxwell, (D. C., E. D. N. Y. 1913) 206 Fed. 333.

564 (h) The objection by a taxpayer when the computation of taxes is made, followed by the filing of a claim for abatement, is sufficient protest to authorize the filing of a suit. Further protest when the tax is paid is unnecessary. Greenport Basin and Con. Co. et al. v. U. S., (D. C., E. D. N. Y. 1920) 269 Fed. 58.

564 (i) The filing of an amended return does not permit the recovery of taxes paid under the original return, which are already barred by the statute of limitations. Maryland Casualty Co. v. U. S., (1920) 251 U. S. 342.

564 (j) A suit against a collector of internal revenue for the recovery of taxes erroneously and illegally exacted is a personal action against the collector; hence, an action for the recovery of such taxes is not maintainable against the successor of the collector who actually collected the taxes. Smietanka (Col.) v. Indiana Steel Co., (1921) 257 U. S. 1; Detroit Hotel Co. v. Brady (Col.), (D. C., E. D. Mich. 1921) 275 Fed. 995.

564 (k) A suit can be maintained only against the collector who collected the tax and not against his successor. In the event the collector who collected dies pending the suit, the suit survives against his personal representatives. Phila. H. & P. R. Co. v. Lederer (Col.), (C. C. A., Third Cir. 1917) 242 Fed. 492, affirming Id., (D. C., E. D. Penn. 1917) 239 Fed. 184; Levy v. Wardell, (1922) 258 U. S. 543. See Lumber Mutual Fire Ins. Co. v. Malley (Col.), (D. C., D. Mass. 1916) 256 Fed. 380, where a suit against the successor of the collector who collected was permitted "following the expressed opinion of both counsel.”’

584 (1) A suit cannot be maintained against a collector of internal revenue to recover taxes illegally assessed and collected, where the taxes were paid to a deputy collector, who was not assigned to the portion of the district in which the taxes were levied or assessed. Hurst v. Lederer (Col.), (C. C. A., Third Cir. 1921) 273 Fed. 174.

564 (m) A suit by a taxpayer against two different collectors of internal revenue for the recovery of income and profits taxes paid to them severally and not

erro

564 (n) In a suit against the collector of internal revenue for internal revenue taxes illegally or neously collected interest and costs are recoverable. Penn. Co. v. McClain, (C. C. A., Third Cir. 1901) 108 Fed. 618, affirming Id., (C. C., E. D. Pa. 1900) 105 Fed. 367; Shanley v. Herold, (C. C. A., Third Cir. 1906) 146 Fed. 20, affirming Id., (C. C. A., Second Cir. 1905) 141 Fed. 423; Conant v. Kinney, (C. C. A., First Cir. 1909) 166 Fed. 720, affirming Id., (C. C., D. R. I. 1908) 162 Fed. 581, Certiorari denied (1909) 214 U. S. 526; Trent v. Farmers' Loan & Trust Co., (C. C. A., Second Cir. 1911) 185 Fed. 760; Kloch Produce Co. v. Hartson, (D. C., W. D. Wash. 1914) 212 Fed. 758; State Line & S. R. Co. v. Davis, (D. C., M. D. Penn. 1915) 228 Fed. 246; N. Y. Mail & Newspaper Trans. Co. v. Anderson, (C. C. A., Second Cir. 1916) 234 Fed. 590; Cleveland C. C. & St. L. Ry. Co. v. U. S., (C. C. A., Sixth Cir. 1923) 286 Fed. 135; Coffey (Col.) v. Exchange Bank of Lennox, (C. C. A., Eighth Cir. 1924) 296 Fed. 807.

564 (0) No authority is vested in the Commissioner of Internal Revenue to overrule his predecessor, and where a taxpayer, in a suit to recover taxes alleged to have been erroneously assessed and collected by the Commissioner, pleads the findings of the predecessor, and the government does not impeach the same, such findings should be taken as conclusive on a motion for judgment on the pleadings. Act of 1913. Penrose v. Skinner (Col.), (D. C., D. Colo. 1921) 278 Fed. 284.

564 (p) The assessment and collection of an income tax imposed by the Act of 1917 after the statute of limitations against assessment and collection expires would be illegal; and such tax would be recoverable by suit as a tax erroneously and illegally assessed and collected. Bashara v. Hopkins (Col.), (C. C. A., Fifth Cir. 1923) 295 Fed. 319, affirming Id., (D. C., N. D. Tex. 1923) 290 Fed. 592.

564 (q) The collector of internal revenue has no legal authority to enforce collection by distraint, where the warrant of distraint is not issued within five years after the return was filed as required by Sec. 250 (d) of the Act of 1921. Seaman v. Bowers (Col.), (C. C. A., Second Cir. 1924) 297 Fed. 371.

564 (r) Where a taxpayer accepted a check for the amount of the principal of a refund and interest thereon to the date of the approval of the schedule of overassessment by the Commissioner of Internal Revenue, he could not thereafter maintain a suit in the Court of Claims against the United States for interest computed for the period from the date of the approval of said schedule by the Commissioner to the date said refund was actually paid. Sec. 1324 of the Act of 1921. Girard Trust Co. et al. v. U. S., (1924) 59 Ct. Cl.

564 (s) When the rule of court provides for interest on a judgment, and the superior court on affirming a judgment of the court below against the collector of internal revenue for internal revenue taxes illegally or erroneously collected, fails to include interest in its mandate, the taxpayer cannot maintain a suit against the United States for interest on such judgment. The proper procedure is to apply to the superior court for a rehearing. DeWitt v. U. S., (D. C., D. Colo. 1923) Fed.

564 (t) Mandamus will lie against the Commissioner of Internal Revenue to compel him to credit a taxpayer under the provisions of Section 252 of the Act of 1921 with the amount of a judgment which the latter recovered against a Collector of Internal Revenue for income taxes erroneously and illegally collected under prior Income Tax Laws, where the court rendering the judgment has issued a certificate of probable cause. Section 252 provides a simple, direct mode for adjusting equitably such a claim for credit. Compliance therewith will do justice to the taxpayer in a manner which avoids circumlocution and does no violence to administrative policy. It requires a mere ministerial act on the part of the Commissioner, and affords the taxpayer a relief for which there is no other adequate remedy. U. S. ex rel. v. U. P. Railroad Co., (Supreme Court, District of Columbia 1924).

564 (u) Though reasonable doubts in a tax statute must be resolved in favor of the taxpayer such statutes are not penal statutes in the sense that they are Malley required to be construed with great strictness. (Col.), v. Walter Baker & Co., (C. C. A., First Cir. 1922) 281 Fed. 41.

564 (v) Sec. 250 (d) of the a period of limitation has no recover taxes alleged to have neously collected. Penrose v. D. Colo. 1921) 278 Fed. 284.

Act of 1918 prescribing application to a suit to been illegally and erroSkinner (Col.), (D. C.,

564 (w) Income taxes were collectible by suit under the Act of 1913 regardless of assessment and although collected under a void assessment, they could not be recovered by the taxpayer by suit, if the government might have prosecuted a successful suit to collect them in the first instance. Penrose v. Skinner (Col.), (D. C., D. Colo. 1921) 278 Fed. 284.

564 (x) Secs. 3224, 3226 and 3227, R. S., do not apply to a proceeding where the U. S. is the moving party; hence, upon an application by the U. S. for an order upon a receiver to pay an assessment, the receiver may show that the assessment was erroneous or illegal, without regard to lapse of time, or to whether there has been an appeal to the commissioner. v. Nebraska Dist. Co., (C. C. A., Seventh Cir. 1897) 80 Fed. 285.

U. S.

564 (y) Where the sole question of fact before the Commissioner was whether a taxpayer was a broker so as to entitle him to certain deductions as losses "incurred in trade,'' and the question of whether such losses were actually sustained was not passed upon by the Commissioner, his decision was not conclusive against the collector in a suit to recover taxes alleged to have been erroneously assessed and collected under the Act of 1913, on a motion for judgment on the pleadings, where the answer averred that no such losses were sustained by the taxpayer during the taxable period. Penrose v. Skinner (Col.), (D. C., D. Colo. 1921) 278 Fed. 284.

564 (z) A suit may be maintained against the U. S. for the recovery of internal revenue taxes illegally or erroneously collected as a claim founded on a law of Congress. Christie-Street Com. Co. v. U. S., (C. C. A., Eighth Cir. 1905) 136 Fed. 326, affirming Id., (C. C., W. D. Mo. 1904) 129 Fed. 506; Hvoslet v. U. S., (1915) 237 U. S. 1, affirming Id., (D. C., S. D. N. Y. 1913) 217 Fed. 680; U. S. v. Shipley, (C. C. A., Third Cir. 1912) 197 Fed. 265; Emery, Bird, Thayer Realty Co. v. U. S., (1915) 237 U. S. 28; affirming Id., (D. C., W. D. Mo. 1912) 198 Fed. 242.

564 (aa) An assessment is presumptively although not conclusively valid. Wilson v. Eisner (Col.), (C. C. A., Second Cir. 1922) 282 Fed. 39.

564 (bb) No act of Congress makes provision for suits against collectors. Coffey (Col.) et al. v. The

Exchange Bank of Lennox, (C. C. A., Eighth Cir. 1924) 296 Fed. 807.

564 (cc) A suit may be maintained against a collector of internal revenue to recover internal revenue taxes illegally or erroneously collected. Philadelphia v. Diehl (Col.), (1867) 5 Wall. 720; Gates (Col.) v. Osborn, (1870) 9 Wall. 567; Brainard (Col.) v. Hubbard, (1871) 12 Wall. 1; U. S. v. Real Estate Sav. Bank, (1882) 104 U. S. 728.

564 (dd) Where the government filed proof of claim for unpaid income taxes imposed by the Act of 1913, the trustee in bankruptcy was not required to pay the tax and then file suit to recover under Sec. 3226, R. S. Sec. 64 (a) of the Bankruptcy Act is binding on the government because it is mentioned therein. It authorizes the Bankruptcy Court to determine questions involving federal taxes due by a bankrupt. In re General Film Corp., and U. S. v. Kellogg, (C. C. A., Second Cir. 1921) 274 Fed. 903.

564 (ee) A corporation was authorized by Sec. 14 (a) of the Act of 1916 to file claim for refund, and, if rejected, to file suit to recover taxes paid under the Acts of 1909 and 1913, notwithstanding the fact that it previously filed suit for the recovery of the same taxes and was unsuccessful, because it did not comply with the then existing law by filing a claim for refund within two years next after the cause of action accrued. The enactment of Sec. 14 (a) of the Act of 1916 amounted to a waiver on the part of the government of the plea of res judicata. Public Service Corp. v. Doyle (Col.), (C. C. A., Third Cir. 1922) 279 Fed. 353, reversing Id., (D. C., D. N. J. 1921) 273 Fed. 282. 564 (ff) Unless suit is begun within the time prescribed by law, it is barred. Christie-Street Com. Co. v. U. S., (C. C. A., Eighth Cir. 1905) 136 Fed. 326, affirming Id., (C. C., W. D. Mo. 1904) 129 Fed. 506; Public Ser. Co. v. Herold (Col.), (D. C., D. N. J. 1915) 219 Fed. 301.

564 (gg) An action for the recovery of income and profits taxes illegally assessed and collected is maintainable against the U. S. in the District Court within the jurisdictional amount and in the Court of Claims, even though paid voluntarily, not under duress, and without protest. Coffey (Col.) et al. v. The Exchange Bank of Lennox, (C. C. A., Eighth Cir. 1924) 296 Fed. 807.

564 (hh) Where a tax of a fixed percentage is so definitely described in the statute that its amount or value can be ascertained and determined on evidence by a court, a suit will lie without an assessment under the Act of 1909. U. S. v. Waddell Inv. Co., (D. C., W. D. Mo. 1921) 275 Fed. 935.

565 (a) Application to the Commissioner of Internal Revenue before payment of a tax for a ruling as to whether a tax is payable does not constitute a claim for refund under Sec. 3226, R. S.; hence, the filing of a claim for refund after the expiration of the statute of limitations does not constitute an amended claim for refund so as to bring it within the statutory period. B. & O. R. R. Co. v. U. S., (1923) 260 U. S. 565, affirming Id., (1921) 56 Ct. Cl. 279.

565 (b) The lodging of an appeal with the proper collector of internal revenue for transmission to the commissioner is a presentation of the appeal to the commissioner within the purview of Sec. 3226, R. S. U. S. v. Real Estate Sav. Bank, (1882) 104 U. S. 728. 565 (c) The filing of a claim for abatement after assessment but before payment of an internal revenue tax and the rejection thereof by the Commissioner does not satisfy the requirement for the filing of a claim for refund or credit before suit under Sec. 3226, R. S. Rock Island, A. & L. R. R. v. U. S., (1920) 254 U. S. 141, affirming Id., (1918) 54 Ct. Cl. 22. Contra: Schwarchild & Sulgberger Co. v. Rucker (Col.), (C. C., D. Oregon 1908) 162 Fed. 961.