The right to sue for the recovery of an internal revenue tax
illegally assessed is conditioned upon prior appeal to and decision
by the Commissioner of Internal Revenue, which mean an appeal,
after payment, for a refund, and is not satisfied by an appeal or
application for abatement of the tax before it was paid.
Rev.Stats., §§ 3226 (as amended), 3220, 3228, construed. P.
254 U. S.
142.
54 Ct.Clms. 22 affirmed.
The case is stated in the opinion.
MR. JUSTICE HOLMES delivered the opinion of the Court.
This is a claim for a sum paid as an internal revenue tax under
the Act of August 5, 1909, c. 6, § 38, 36 Stat. 11, 112. It is
alleged that the claimant was not engaged in or doing business in
the year for which the tax was collected, and that therefore it was
not due. The Court of Claims dismissed the petition on the ground
that the claimant had not complied with the conditions imposed by
statute, and the claimant appealed to this Court.
The facts are simple. After the tax was assessed, a claim for an
abatement was sent to the Commissioner of Internal Revenue in July,
1913. On December 18 of the
Page 254 U. S. 142
same year, the Commissioner rejected the application, whereupon,
on December 26, the claimant paid the tax with interest and a
penalty. So far as appears, there was no protest at the time of
payment and it is found that, after it, nothing was done to secure
repayment of the tax. By Rev.Stats. § 3226, amended by Act of
February 27, 1877, c. 69, § 1, 19 Stat. 248, no suit shall be
maintained in any court for the recovery of any tax alleged to have
been illegally assessed
"until appeal shall have been duly made to the Commissioner of
Internal Revenue, according to the provisions of law in that
regard, and the regulations of the Secretary of the Treasury
established in pursuance thereof, and a decision of the
Commissioner has been had therein, provided,"
etc. Regulations of the Secretary established a procedure and a
form to be used in applications for abatement of taxes and distinct
ones for claims for refunding them. The claimant took the first
step, but not the last.
By Rev.Stats. § 3220, the Commissioner of Internal Revenue is
authorized "on appeal to him made, to remit, refund, and pay back"
taxes illegally assessed. It is urged that the "appeal" to him to
remit made a second appeal to him to refund an idle act, and
satisfied the requirement of § 3226. Decisions to that effect in
suits against a collector are cited, the latest being
Loomis v.
Wattles, 266 F. 876. But the words "on appeal to him made"
mean, of course, on appeal in respect of the relief sought on
appeal -- to refund if refunding is what he is asked to do. The
words of § 3226 also must be taken to mean an appeal after payment,
especially in view of § 3228, requiring claims of this sort to be
presented to the Commissioner within two years after the cause of
action accrued. So that the question is of reading an implied
exception into the rule as expressed, when substantially the same
objection to the assessment has been urged at an earlier stage.
Page 254 U. S. 143
Men must turn square corners when they deal with the government.
If it attaches even purely formal conditions to its consent to be
sued, those conditions must be complied with.
Lex non praecipit
inutilia (Co.Lit. 127b) expresses rather an ideal than an
accomplished fact. But. in this case, we cannot pronounce the
second appeal a mere form. On appeal, a judge sometimes concurs in
a reversal of his decision below. It is possible, as suggested by
the Court of Claims, that the second appeal may be heard by a
different person. At all events, the words are there in the statute
and the regulations, and the Court is of opinion that they mark the
conditions of the claimant's right.
See King's County Savings
Institution v. Blair, 116 U. S. 200. It
is unnecessary to consider other objections that the claimant would
have to meet before it could recover upon this claim.
Judgment affirmed.