#### MASCOT OIL CO. v. THE UNITED STATES1

[No. K-67.

Decided June 2, 1930]

*Mr. Theodore B. Benson*for the plaintiff.

*Mr. George H.*Foster, with whom was *Mr. Assistant Attorney General Herman J.*Galloway, for the defendant. *Mr. MoGlure Kelley*was on the brief.

1

 Certiorari applied for.

*248GeeeN, Judge,

delivered the opinion of the court:

This action is begun to recover taxes which had been paid after the period of limitations had run against their collection. Counsel for plaintiff supports its case by the same line of argument that was presented to this court in *Oak Worsted Mills*v. *United States,*68 C. Cls. 539, and *Gotham Can Co.*v. *United*States, 68 C. Cls. 749, in both instances adversely to the plaintiffs therein. In the *Oak Worsted Mills case, supra,*we held that sections 607 and 611 of the act of 1928 prevented a recovery. In the *Gotham Can Co. case, supra,*we held that section 1106 (a) of the act of 1926 was of no benefit to the plaintiff where the taxes in question had been collected prior to the time when the; revenue bill of 1926 went into effect unless it was shown that the taxes were overpaid. It was expressly stated, however, in that decision that *249the court did not pass on the effect of the provision in the revenue bill of 1928 which repealed section 1106 (a) of the act of 1926 as of the date of its enactment. In the case at bar, it appears that the taxes in controversy were collected after the 1926 act went into force. The decision in the *Gotham Can, Co. case*is therefore not controlling herein because it does not determine the construction or effect of section 1106 (a) when the taxes were collected after the period of limitations had expired and the 1926 act was in force. But we do not find it necessary to determine the question left open by the *Gotham Can, Co. case*‘for the reason that the defendant sets up an entirely new and different defense from anything pleaded in the two cases cited above and insists that the facts shown in support of this defense are sufficient by themselves and alone to warrant a judgment in its favor.

This defense is that the evidence shows that the plaintiff had made a deposit in a bank as a guaranty of the payment of the taxes in controversy when finally determined. In consideration of this deposit, the bank advised the collector of internal revenue that it would pay the amount of taxes finally determined by the commissioner to be due from the plaintiff, the case was held up until determination had been made, and thereafter when such taxes were finally determined the plaintiff paid the amount thereof and obtained a release of the deposit. The defendant contends that the principles laid down in the case of *United States*v. *John Barth Co.,*279 U. S. 370, in any event prevent the plaintiff from recovering the refund in controversy. In that case the Government brought suit to enforce a bond given by the defendant and its surety for the payment of taxes, and the defense was made that payment was exacted after the collection of the tax was barred by the statute of limitations. The court said that neither the statute of limitations nor section 1106 (a) of the revenue act of 1926 applied to an action upon a bond, and the signers of the bond were not relieved from the obligations arising out of that instrument. The court further said that—

> “ * * * the taxpayer was permitted by a bond temporarily to postpone the collection and to substitute for his *250tax liability his contract under the bond. The object of the bond was not only to prevent the immediate collection of the tax but also to prevent the running of time against the Government.”

Judgment was accordingly rendered against the taxpayer.

It is true that in the case last cited the bond was filed prior to the time when the statute of limitations expired and in the instant case the deposit was made in the bank and the guaranty given of payment after the statute had run against the collection of the tax. We are nevertheless clear that this does not alter the situation, and that the principles announced in the *John Barth Co. case,*supra, determine the case at bar. In the instant case, the deposit was made and the guaranty given prior to the enactment of the 1926 act. Conceding for the purposes of the argument only that when the 1926 act was passed, section 1106 (a) thereof extinguished the liability for taxes collected after the statute of limitations had run and enabled a suit to be brought to recover the amount paid, it still must be said that the liability existed prior to the enactment of that act. In fact, the passage of section 1106 (a) showed that Congress recognized that the liability did exist. This, as we observed in the *Gotham Can Co.*case, was in pursuance of the well-known principle — so well established as to need no citation of authorities — -that the statute of limitations or other bar against a remedy for the collection of a debt does not extinguish the liability therefor.

As the liability for the tax still existed at the time when the deposit was made in the bank for its payment, the contract which the bank made to pay whatever amount might finally be determined to be the tax, was made upon a valid consideration both as to the plaintiff and the bank. The bank did not, it is true, pay the tax itself as the agreement provided. The plaintiff paid the tax and thereby discharged the liability of the bank. But whether paid by plaintiff or the bank, the result was the same. The collection was not made on the ground that a tax was due, but was based on a valid contract to pay a certain amount when it was determined by the commissioner. The tax fixed the sum to be paid, but the payment and collection was by virtue off the contract and not by reason of the tax liability, and *251the payment therefore can not be recovered by plaintiff. We hardly think it is necessary to cite authorities to show that the moral obligation to pay a valid debt is sufficient legal consideration for a subsequent new promise to pay if made either before or after the» bar of the statute has become complete, and that the new promise based upon such moral obligation is binding upon the debtor and may be shown in avoidance of the statute of limitations. But see the numerous decisions, both State and Federal, listed on this point under section 569, page 1099, of 37 Corpus Juris.

Counsel for plaintiff urge that the waiver which was executed the day following that on which the deposit was made in the bank is invalid, first, because it was executed after the statute of limitations had run, and, second, because it was so restricted by its terms as not to apply to the conditions in the case at bar. But these matters do not affect defendant’s right to retain the money paid pursuant to the guaranty. While we have no necessity for considering them, it might be said that in the case of *Charles H. Stange*v. *United*States, 68 C. Cls. 395. we held that a waiver was not invalid simply for the reason that it was executed after the expiration of the period of limitations.

Without considering the other questions arising in the case, we hold that by reason of the deposit and guaranty the plaintiff is not entitled to recover herein and it is ordei’ed that its petition be dismissed.

Williams, *Judge;*LittletoN, *Judge;*and Booth, *Chief*Justice, concur.