Witherbee v. Durey

N.D. New York

Witherbee v. Durey

296 F. 576, 4 A.F.T.R. (P-H) 3860, 1924 U.S. Dist. LEXIS 1781, 1924 U.S. Tax Cas. (CCH) 2459

CourtDistrict Court, N.D. New York

DecidedJanuary 12, 1924

StatusPublished

Cited by2 cases

This text of 296 F. 576 (Witherbee v. Durey) is published on Counsel Stack Legal Research, covering District Court, N.D. New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Witherbee v. Durey, 296 F. 576, 4 A.F.T.R. (P-H) 3860, 1924 U.S. Dist. LEXIS 1781, 1924 U.S. Tax Cas. (CCH) 2459 (N.D.N.Y. 1924).

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Opinion

COOPER, District Judge.

This is a suit for an injunction restraining the collector of internal revenue for the Fourteenth district of New York from executing a warrant of distraint issued against the plaintiff, for the collection of an alleged additional income tax against her for the year 1917, amounting, with interest and penally, to the sum of $8,542.96. The plaintiff relies on section 250 (d) of the Revenue Act of 1921 (Comp. St. Ann. Supp. 1923, § 6336%tt).

Though the warrant of distraint was not issued -until after five years from the date of filing the return for the year 1917, the assessment of the alleged additional tax, and two demands for payment were made upon the plaintiff, within five years from the-date of filing the return. By reason of such assessment and demands, section 250 (d) of the Revenue Act of 1921, on which the plaintiff relies, does not apply. The facts bring the case into close analogy to Graham v. Du Pont, 262 U. S. 234, 43 Sup. Ct. 567, 67 L. Ed. 965, which is controlling here. See, also, Bashara v. Hopkins (D. C.) 290 Fed. 592. Had no assessment, demand, or attempt to collect the tax been ifiade within the five-year period, plaintiff would be entitled to the relief sought.

The temporary injunction is denied. The motion of the defendant for the dismissal of the complaint is granted. ;'

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COOPER, District Judge.

This is a suit for an injunction restraining the collector of internal revenue for the Fourteenth district of New York from executing a warrant of distraint issued against the plaintiff, for the collection of an alleged additional income tax against her for the year 1917, amounting, with interest and penally, to the sum of $8,542.96. The plaintiff relies on section 250 (d) of the Revenue Act of 1921 (Comp. St. Ann. Supp. 1923, § 6336%tt).

Though the warrant of distraint was not issued -until after five years from the date of filing the return for the year 1917, the assessment of the alleged additional tax, and two demands for payment were made upon the plaintiff, within five years from the-date of filing the return. By reason of such assessment and demands, section 250 (d) of the Revenue Act of 1921, on which the plaintiff relies, does not apply. The facts bring the case into close analogy to Graham v. Du Pont, 262 U. S. 234, 43 Sup. Ct. 567, 67 L. Ed. 965, which is controlling here. See, also, Bashara v. Hopkins (D. C.) 290 Fed. 592. Had no assessment, demand, or attempt to collect the tax been ifiade within the five-year period, plaintiff would be entitled to the relief sought.

The temporary injunction is denied. The motion of the defendant for the dismissal of the complaint is granted. ;'

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Bluebook (online)

296 F. 576, 4 A.F.T.R. (P-H) 3860, 1924 U.S. Dist. LEXIS 1781, 1924 U.S. Tax Cas. (CCH) 2459, Counsel Stack Legal Research, https://law.counselstack.com/opinion/witherbee-v-durey-nynd-1924.

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