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penalty and interest accrue. The Government may proceed by levying on and distraining the property of the taxpayer if payment of penalty and interest is not made within ten days from the date of the second notice and demand for the tax. This drastic means of enforcing payment is within the power of Congress since the power to tax includes the power to undertake effectual means to collect the tax.3

Suit to Restrain Assessment or Collection. No suit for the purpose of restraining the assessment or collection of any tax shall be maintained in any court. The constitutionality of a law cannot be inquired into in an injunction suit against the government, but may be in a stockholder's suit to enjoin the corporation from voluntarily paying a tax charged to be unconstitutional.6 An injunction will not be granted at the instance of a stockholder to restrain the officers of a corporation from paying the tax, other than voluntarily, as that would, in effect, be the same as an action to restrain the Government. Allegations that an assessment is irregular and

7 void do not constitute any ground for an injunction. A bill in equity will not lie to enjoin collection although the tax is alleged in the bill to have been illegally assessed.9 A collector cannot be restrained from collecting an assessment by injunction.10 It is contrary to every principle of equity jurisprudence that the collection of taxes on personal property should be stayed by injunction. 11 The courts will not interfere by a mandamus with the executive officers of the Government in the exercise of their ordinary official duties.12 In matters which require an executive officer to exercise judgment or discretion no rule will issue for mandamus.13 The inhibition of Section 3224 applies to all assessments of taxes, made under color of their offices, by internal revenue officers charged with general jurisdiction of the subject of assessing the income tax. The remedy of a suit to recover back the tax after it is paid is provided by statute, and a suit to restrain its collection is forbidden. The remedy so given is exclusive, and no other remedy can be substituted for it. The system of administrative measures, not judicial, to collect internal revenue taxes, with appeals to specified tribunals, and suits to recover back moneys illegally exacted is a system of corrective justice intended to be complete, and enacted under the right belonging to the Government to prescribe the conditions on which it would

3 McCulloch v. Maryland, 4 Wheat. 316; Flint v. Stone-Tracy Co., 220 U. S. 107.

4 R. S., § 3224.

5 Delaware R. R. Co. v. Prettyman, 17 Int. Rev. Rec. 99; Allen v. Pullman's Palace Car Co., 139 U. S. 658; Dodge v. Brady, 240 Ul. S. 122.

6 Pollock v. Farmers Loan & Trust Co., 157 U. S. 429; Flint V. Stone-Tracy Co., 220 U. S. 107; Brushaber v. Union Pacific R. R. Co., 240 U. S. 1.

7 Strauss v. Abrast Realty Co., 200 Fed. 327. 8 Alkan v. Bean, 23 Int. Rev. Rec. 351.

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9 Snyder v. Marks, 109 U. S. 189; Dodge v. Osborn, 240 U. S. 118.

10 State R. R. Tax cases, 92 U. S. 575; Keely v. Sanders, 99 U. S. 441.

11 Nye v. Washburn, 125 Fed. 818.

12 U. S. v. Black, 128 U. S. 40. The court in this case followed an earlier decision of Decatur v. Paulding (14 Pet. 497) and made clear the distinction between the mere ministerial act of the executive officer, which may be controlled by the courts by mandamus, and an act in the performance of which an officer is vested with quasi-judicial discretion.

13 Carrick v. Lamar, 116 U. S. 423.

subject itself to the judgment of the courts in the collection of its revenues. 14

Notice of Assessment. When the assessment has been made by the Commissioner of Internal Revenue the collector is notified and he sends the taxpayer a notice of assessment, usually on or before June 1.15 This notice, however, is not a demand for payment of the tax, but is merely a notification of the amount which has been assessed and the date on which the tax is due and payable. Failure to pay the tax on receipt of this notice does not make the taxpayer liable for penalty or interest. In the case of a corporation making returns for a fiscal year, the notice of assessment is given on or before the expiration of ninety days from the day when the return was required to be filed. 16

Notice and Demand for Tax. If the tax is not paid on or before the date on which it is due, a notice and demand is issued to the taxpayer. The notice and demand is usually dated and sent out on the day the tax is due. It calls attention to the fact that the tax has been assessed, showing the amount thereof, and demands payment on or before a date given in the notice. Unless the tax is paid within the time specified the penalty imposed for delay in payment of the tax will be added to the assessment.17 This notice and demand is necessary in order to make the taxpayer liable for the penalty and interest in case of delay in payment of the tax, and is necessary to complete the government's lien on property belonging to the taxpayer. The fact that a claim for abatement is pending, or the tax is in litigation, does not relieve the collector from issuing the notice.18 The notice may lawfully be given by mail and when so given is presumed to have been received. The burden rests on the taxpayer to prove the contrary in order to avoid the penalty.19 The practice of the Department in such cases is to permit the taxpayer to show, to the satisfaction of the Commissioner, that he did not receive the notice, and upon such showing to give the taxpayer an opportunity to pay his taxes without penalty. The record of the collector showing that notice had been duly mailed is considered merely as prima facie evidence that the notice was received.20 The date appearing on the notice and demand, as the last date on which the tax may be paid without penalty, should be a date ten days subsequent to the actual mailing of the notice and not necessarily ten days from the date of the notice. The date of mailing controls. 21

14 Dodge v. Osborn, 240 U. S. 118.

15 The notice is given to corporations on a form known as Form 1-647 A and to individuals on Form 1-647B. The two forms are essentially the same. Each is divided into three parts, one part for the taxpayer (which will operate as his receipt when he pays the tax), one part for the record of the Commissioner, and one part for the record of the local collector. When the tax is paid all three parts of the notice should be presented to the local collector who will properly receipt the part intended for the taxpayer and retain the other two parts. 16 Reg. 33, Art. 177.

F.I. Tax.-26

17 Reg. 33. Art. 197. Form 1-17A is used in notifying corporations and Form 1-17B in notifying individuals. The forms are essentially the same, each is divided in three parts in the manner and for the purpose described in the preceding note regarding the notice of assessment.

18 T. D. 1995.

19 U. S. v. General Inspection and Loading Company, 204 Fed. 657.

20 I. T. S. 1917, s 2268. 21 T. D. 1659.

NOTICE AND DEMAND TO ABSENTEES. When an individual is absent in a foreign country and it is impossible for him to receive the notice and demand in time to make payment of the taxes assessed thereon within the ten-day period following the service of the notice, the collector will make an allowance so that the tax may be paid without penalty ten days after receipt of the notice, and, if the full amount of the tax has been placed in the mail for transmission within ten days after such receipt, the penalty and interest will not be exacted. In such a case the envelope which enclosed the notice, bearing the postmark of the receiving office, should, if possible, be forwarded to the collector as evidence of the cause of delay. This ruling applies only to the collection of the tax from individuals, 22 but it would seem to be a reasonable rule to apply to all cases where the time consumed in the transmission of the mails makes it impossible to · mail the notice and demand and to receive reply in ten days.

Second Notice and Demand for Tax. If the tax is not paid within ten days after mailing the first notice and demand, a second notice and demand is given the taxpayer, which states that having failed to make payment of the tax within the prescribed time after notice and demand, there has attached a 5% penalty on the tax and interest at 1% per month from a specified date. In this notice, demand is made for the taxes, penalty and such interest as may accrue before payment, together with a threat that if the tax, penalty and interest is not paid within ten days from the date of the notice, the Collector of Internal Revenue will collect the same with costs by seizure and sale of property.23

22 T. D. 2028.

23 Form 1-21A is used in giving corporations the second notice and demand for tax and Form 1-21B is used in notifying in

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