United States v. Minneapolis Threshing Mach. Co. , 229 F. 1019 ( 1915 )

BOOTH, District Judge.

[1] It is contended by the defendant that an action such as the present, which may be considered an action of indebitatus assumpsit, will not lie under the facts in this case, and that, inasmuch as no assessment had been formally made by the collector of internal revenue, no action will lie, and, finally, that no assessment can be made, nor action maintained, because it is barred by the three-year limitation clause contained in the fifth paragraph of section 38, chapter 6, 36 Stat. at Large, 112; said section containing the provision under which the excise tax involved in this controversy was authorized. The eighth paragraph of said section 38, contains the following clause:

“All laws relating to the collection, remission, and refund of internal revenue taxes, so far as applicable to and not inconsistent with the provisions of this section, are hereby extended and made applicable to the taxes imposed by this section.” Comp. St. 1913, § 6307.

In United States v. Chamberlin, 219 U. S. 250, 31 Sup. Ct. 155, 55 L. Ed. 204, which was a case arising under War Revenue Act June 13, 1898, c. 448, 30 Stat. 448, the court construed section 31, which makes applicable “all administrative, special, or stamp provisions of law, including the laws in relation to the assessment of taxes, not heretofore specifically repealed,” as authorizing an action of debt under authority conferred by section 3213, Rev. St. (Comp. St. 1913, § 5937), for the recovery of the amount of a stamp tax payable, but not paid, under said War Revenue Act. The court in its opinion said:

“Whether an action of debt is maintainable depends, not upon the question as to who is the plaintiff, or in what manner the obligation was incurred; but it lies whenever there is due a sum either certain or readily reduced to certainty.”

The language contained in paragraph 8 of the act under consideration in the present case is much clearer and broader than the language considered in the case of United States v. Chamberlin, supra, and clearly authorizes the present action. To the same general effect, see King v. United States, 99 U. S. 229, 25 L. Ed. 373; Dollar Savings Bank v. United States, 19 Wall. 227, 22 L. Ed. 80; United States v. Little Miami R. R. Co. (C. C.) 1 Fed. 700. This last case was reversed in the Supreme Court, in 108 U. S. 277, 2 Sup. Ct. 627, 27 L. Ed. 724, but on another point. That no formal assessment is necessary, see Dollar Savings Bank v. United States, 19 Wall. 227, 22 L. Ed. 80; King v. United States, 99 U. S. 229, 25 L. Ed. 373; United States v. Little Miami R. R. Co. (C. C.) 1 Fed. 700.

[2] That neither limitation of time upon the action of the Commissioner of Internal Revenue contained in paragraph 5 of said section 38, above referred to, nor any other statute of limitation, is binding upon the United States in bringing an action like the one at bar, see United States v. Thompson, 98 U. S. 486, 25 L. Ed. 194; United States v. Insley, 130 U. S. 263, 9 Sup. Ct. 485, 32 L. Ed. 968; United States v. Norris, 222 Fed. 14, 137 C. C. A. 552 (C. C. A. 8); United States v. Little Miami R. R. Co. (C. C.) 1 Fed. 700.

Let judgment be entered for the plaintiff.