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George Moore Ice Cream Co., Inc. v. Collector, 289 U.S. 373 (1933)

George Moore Ice Cream Co., Inc. v. Collector of Internal Revenue

No. 675

Argued April 19, 20, 1933

Decided May 8, 1933

289 U.S. 373


1. Section 1014 of the Revenue Act of 1924, amending R.S., § 3226, provides that no suit to recover a tax alleged to have been erroneously or illegally assessed or collected shall be maintained until claim for refund or credit has been filed, and that such suit may be maintained whether or not the tax was paid under protest. It further provides: "This section shall not affect any proceeding in court instituted prior to the enactment of this Act."


Page 289 U. S. 374

(1) That the former rule requiring a protest at the time of payment as a condition precedent to recovery is abolished as to any suit brought after the date of the Act, irrespective of the date of the underlying payment. P. 289 U. S. 375.

(2) This view results from the phraseology and implications of the statute, and is confirmed by its history and congressional reports. P. 289 U. S. 377.

2. The rule that statutes should be so construed as to avoid grave doubts of their validity is inapplicable where the statutory intent is clear. P. 289 U. S. 379.

3. Where an internal revenue Collector, acting by direction of the Commissioner, collects and turns in an income tax assessed by the latter and is sued by the taxpayer for recovery, he is entitled by R.S., § 989 (28 U.S.C. 842), if judgment go against him, to a certificate of the court showing that he so acted, and is relieved of liability to execution; the judgment is payable from the Treasury, and the suit is in effect a suit against the United States. P. 289 U. S. 380.

4. As to such cases, therefore, it cannot be said that § 1014 of the Act of 1924, supra, by abolishing retroactively the requirement of protest by the taxpayer as a condition to his right of action, infringes any right of the Collector under the due process clause of the Fifth Amendment. P. 289 U. S. 383.

5. A general claim of error in assessing net income held amendable after the statutory period. United States v. Memphis Cotton Oil Co., 288 U. S. 62; United States v. Factors & Finance Co., 288 U. S. 89. P. 289 U. S. 384.

61 F.2d 605 reversed.

Certiorari to review the affirmance of a judgment dismissing the complaint in an action by a taxpayer against the Collector to recover money alleged to have been illegally collected as income and profits taxes.

Page 289 U. S. 375

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