Fox v. Edwards

280 F. 413, 2 A.F.T.R. (P-H) 1660, 1921 U.S. Dist. LEXIS 833

Opinions

KNOX, District Judge.

When the within demurrer came on for argument, there was a default upon behalf of the plaintiff, and no brief has been filed by or for him. I am therefore deprived of the benefit of such views as he or his counsel may entertain with respect to the facts and law here involved. It appears from the complaint, to which defendant demurred, that the money for the recovery of which suit was brought was paid voluntarily in March, 1919, as and for a part of plaintiff’s income tax for the year 1918. The item of loss, upon account of which plaintiff now believes himself entitled to a refund, was not called to the attention of any government oficial prior to March, 1921. The originad tax having been transmitted to the treasury without protest or complaint upon the part of plaintiff, it seems to me that as against the collector there could be no recovery at common law, nor under the statutes relating to him or his office.

It is possible that plaintiff has some rights granted to him under the provisions of section 252 of the Revenue Act of 1918 (Comp. St. Ann, Supp. 1919, § 6336j/guu); but, if so, I am of opinion that such rights cannot be asserted in a suit against the collector who received plaintiff’s voluntary payment in 1918. Judgment may be entered sustaining the demurrer of defendant and dismissing the complaint.