Sullivan v. United States

WELSH, District Judge.

Plaintiff brought this action to recover deficiency taxes paid by him for the years 1947, 1948 and 1949. The defendant has moved to dismiss on the ground that plaintiff prior to the commencement of this action failed to file a claim for refund with the Secretary or his authorized delegate.

Section 7422(a) of the Internal Revenue Code of 1954 which is applicable here provides: “(a) No suit prior to filing claim for refund. — No suit or proceeding shall be 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 been excessive or in any manner wrongfully collected, until a claim for refund or credit has been duly filed with the Secretary or his delegate, according to the provisions of law in that regard, and the regulations of the Secretary or his delegate established in pursuance thereof.” 26 U.S.C. § 7422.

Clearly, the intent of said Section is that no action can be maintained in this Court until a claim for refund has been filed with the Secretary or his delegate. See Rock Island, Arkansas and Louisiana Railroad Company v. United States, 254 U.S. 141, 41 S.Ct. 55, 65 L.Ed. 188, decided under the 1939 Internal Revenue Code, nevertheless applicable since Section 7422 of the 1954 Code is merely a reenactment of Section 3772 of the 1939 Code.

In the instant case no claim for refund of the deficiency taxes paid was filed prior to the commencement of this action. In such circumstances this action cannot be maintained.

Accordingly, defendant’s motion to dismiss is granted.