U.S. Supreme Court GEORGE MOORE ICE CREAM CO. v. ROSE, 289 U.S. 373 (1933)

[Page 289 U.S. 373, 377]

We think the intention of the Congress was to remove the requirement of protest in any suit thereafter brought, irrespective of the date of the underlying payment. [Footnote 2]

[Page 289 U.S. 373, 384]

No such situation is presented by the record now before us. Indeed, no such situation, it would seem, can ever be presented where a collector has done no more than accept payment of a tax assessed by a superior who has been invested by the statute with power to command. Our duty does not require us to deal with problems merely hypothetical. If a case should develop where a certificate might issue as a matter of discretion, other questions would be here. There would then be need to consider whether the objection of a denial of due process would be open to a collector until a request for the certificate had been made and refused. 'Due process requires that there be an opportunity to present every available defense; but it need not be before the entry of judgment.' American Surety Co. v. Baldwin, 287 U.S. 156, 168, 53 S.Ct. 98, 102; York v. Texas, 137 U.S. 15, 20, 11 S.Ct. 9. There would be need also to consider whether in its application to an officer acting of his own motion, and not in the fulfillment of the command of a superior, the requirement of protest is a procedural limitation upon the remedy for a wrong, or one of the substantive elements of the wrong itself. We leave those questions open.

2. The government contends that the claim for refund filed by the petitioner with the Commissioner of Internal Revenue was not subject to amendment after the time had gone by when a claim wholly new would have been barred by limitation.

The claim in its original form gave notice of specific errors in the adjustment of invested capital. It gave notice also in general terms that aside from any errors in the adjustment of the capital there had been an erroneous assessment of net income at the sum of $16,940.18, when in fact there had been a loss. We think the statements as to income were subject to amendment. United States v. Memphis Cotton Oil Co., , 53 S. Ct. 278; United States v. Factors & Finance Co., 288 U.S. 89, 53 S.Ct. 287.

The judgment is reversed. Footnotes

Footnote 1 Section 1014. (a) Section 3226 of the Revised Statutes, as amended, is amended to read as follows:

Section 3226: '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 Commissioner of Internal Revenue, according to the provisions of law in that regard, and the regulations of the Secretary of the Treasury established in pursuance thereof; but such suit or proceeding may be maintained, whether or not such tax, penalty, or sum has been paid under protest or duress. No such suit or proceeding shall be begun before the expiration of six months from the date of filing such claim unless the Commissioner renders a decision thereon within that time, nor after the expiration of five years from the date of the payment of such tax, penalty, or sum, unless such suit or proceeding is begun within two years after the disallowance of the part of such claim to which such suit or proceeding relates. The commissioner shall within 90 days after any such disallowance notify the taxpayer thereof by mail.'

(b) This section shall not affect any proceeding in court instituted prior to the enactment of this act.

Footnote 2 In the lower federal courts the decisions are conflicting. Most of them have taken the view adopted here. Beatty v. Heiner (D.C.) 10 F.(2d) 390; Warner v. Walsh (D.C.) 24 F.(2d) 449; Hyatt Roller Bearing Co. v. United States (Ct. Cl.) 43 F.(2d) 1008; Weir v. McGrath (D.C.) 52 F.(2d) 201; Electric Storage Battery Co. v. McCaughn (D.C.) 52 F.(2d) 205; cf. Winant v. Gardner (C.C.A.) 29 F.(2d) 836; Moses v. United States (C.C.A.) 61 F.(2d) 791. Contra, Warner v. Walsh (D.C.) 27 F.(2d) 952.

Footnote 3 The Senate Report contains the following:'Section 1114. The provisions of Section 1318 of existing law have been amended to provide that after the enactment of the bill it shall not be a condition precedent to the maintenance of a suit to recover taxes, sums, or penalties paid, that such amounts shall have been paid under protest or duress. The fact protest was made has little bearing on the question whether the tax was properly or erroneously assessed. The making of such a protest becomes a formality so far as well advised taxpayers are concerned and the requirement of it may operate to deny the just claim of a taxpayer who was not well informed.'

Footnote 4 ' 842. When a recovery is had in any suit or proceeding against a collector or other officer of the revenue for any act done by him, or for the recovery of any money exacted by or paid to him and by him paid into the Treasury, in the performance of his official duty, and the court certifies that there was probable cause for the act done by the collector or other officer, or that he acted under the directions of the Secretary of the Treasury, or other proper officer of the Government, no execution shall issue against such collector or other officer, but the amount so recovered shall, upon final judgment, be provided for and paid out of the proper appropriation from the Treasury.'