The sun. [volume] (New York [N.Y.]) 1833-1916, 1878-03-27

,ui IL wv oeoNccDt "0o, 20
duty thereon in the Same manner IA is pro:
vided for in other cases OF neglect and refusal
TO furnish lists or schedules in tho general pro-
visions Of this act :; and the act Of 1864 provides
TINT. in case Of any default in making or ren.
the duty or any part thereof as aforesaid. the
assessment and collection of the duty and pen
atty shall be made according to the provisions
Of law In other cases Of neglect and refusal"
The United states brought an action OF debt
founded on the above statute. against the saw
ings bank (which was n banking institution
created by the laws OF Pennsylvania, without
stockholders or capital stock. and doing the
Tor the benefit Of lis depositors. and whose
charter authorized II TO retain n contingent
tent Of ten yer centum of its, deposits. for the
security OF its dcpositors). alleging That y had
earned such conngsn, FUND or undis II Wa
an aggregate specified sum OF money. made up
OF several sums OF earnings which were added
semi-annually during such period on the nrst
days Of July and January in each year TO such
contingent or undistributcd fund ana that II
owed to the United States II tax, of five per
centum on such aggregate sum. The bank had
never made any return relative 70 any such
missioner Of Internal Rovenuo to do so, but
s 6 htrna d H Ss
the bank was not liable to "a tax on any sum
added To its retained and undstrihutcd fund.
subsequent Commissioner, in 1872. adopted
action referred to was brought in the Circuit
Court for the Western District OF Pennsylvania.
A 1udEnlp nj WAS rendered nv tnNt court In favor
of the United States against the bank for the
amount of the tax. at per centum. So 1856 with
out interest from the scmi-annual pc RODS when
the taxes became due and payable. such interest
being disallOwcd because the failure of the
bank to pay the tax had been induced
10y the rulings Of the several Commits
siOners. After Judgment the bank took
the case to the Supreme Court by writ Of error.
and assigned for error that the statute did not
authorize the levy and collection of the tax and
that an action OF debt was not ma ntainablo for
tho recovery OF the tax. On the argument be-
fFA hA nut and aal FOR
the bank that the statute did not authorize the
levy and collection Qi the tax at all; and that.
II II did. the tax could not be recovered 10y the
action Of debt brought. A. parts OF the lattor
proposition. Il was contendod for the bank. that
ns the statute afforded u remedy for the assess
mcnt and collection OF the tax an action OF debt
would not lie to recover the tax. that as the
statute created the right, and provided rem
ely for vlndicailng such right. no other remedy
than that could hc used. aud especially that. rs
the statute provided that in case Of default in
sN'n asa. n r.oIrn and dpS ay4E Of tRe
tax and penalty should be in accord
ance with the provisions of law IN other
eases of neglect and refusal namely. the max
Ing of lists containing specified particulars.
authority IN the assessor within fifteen months
the delivery Of the list To- the collector. TO make
additional lists. and the delivery of the lists To
the properly OF tho delinquent taXpaycrl. no ac-
ton Ot debt would lie To- recover the tax IL was
further contendcd for the bank shat. even II an
action OF debt could he sustained To recover
tax duly assessed. notified. and demanded. II
did not appear that one OF the taxes in question
was ever duly assessed that II an attempt 10
ASSESS them had been made. the assessor could
not have gone back Of the term of fifteen months
before ne delivered his last list to the collector:
and that. because the taxes demanded in the
suit had never been regularly assessed. the suit
would not lie IN lhe Circuit Soart the only
rcquir red IN" bank 10 pay tho tax.
In the opinion il is first held that the statute
authorized the levy and collection of the tax.
The opinion then passes To consider the ques-
ton whether an action of debt could be main
tanned 10 recover the tax, and says that the
question must be in the affirmative. The opinion
discusses and meets the propositions urged,
that the statute which imposed the tax provided
a special remedy for lis assessment and collec-
ton; that III such case no other remedy than
that afforded 10y the statute could b. used: that
4 return WIS required and n penalty imposed
for a default in making it, that in case. Of de-
the statute provided that the assessment and
collection Of the tax and penalty should be- in
accordance with the general provisions Of law
in other cases Of neglect and refusal such pro-
collector, and distrant; and that where
statute creates right and provides a particular
remedy for It's enforcement. the remedy is gen
orally exclusive OF all common law remedies.
After discussing the Application Of this case
at great length Judge Blatchford says:
Bank s Hs, 40 s the
@ @S s's"' He p4S, s w0 IL each e6e s" s
imposed by the statute The tax is not imposed by any
~ The statute The statute ltsei declares IN each ease
eoee,cd and paid -leenea cBltet o, 'xha6n Il,
the year to contingent funds OF bank IN the other
dividaaL
After continuing the parallel further, Judge
Blatchford says:
Ills commended Tor defendant that the authority Of
the iecon the Savings Bank case Is confined 10 the
single quesuon whether the banks were subject TO
ihc and tina, every thing else III the opinion OF the
It's iurcicr conicnded that whatever The opinion q
,at an action could be maintained except when the YAK
was sum certain ascertned before the suit nor mat
the value ut the ihlng TO De taxed ~ IN
certain indefinite so as 20 require dlsersuon or us
notwithstanding that value an as.e ssnent0y ne as.es
be dispensed Win nor that e amount Of NE tS
H. r.co,ery can be maintained. nor that. case
where the income gains and onts Of year are to be
power, and Judgment vested in the assessor
can he dl., on-.d With cannot concur ~ any d tese
views fg.Ar9 thy sas., naHh oHse a. Shfif =,
pm adversely W he positions relsci on by the dele nee
foregoing considerations dispose Of The view urged
p.ea.e snt, have cser Gscn entered On any asses
ment hst There ren AIN. NE iar,hs question: ~, ,tI
Vas entered ON lit by the Assessor. ether atr
turn l the defendant default OF return and that
such amount d TAX was anu. whether With or with
q an s,s s,a s dersnee tetm,sn e ,s tax AND AND
ftisconi, naed for the defendant that the making
and thereby. operated a. an eecuon bV e United sht,
between the statulnr, process and the remedy by action
50 A. IL d,baT the United state from now prosecuting W
mtdy by tor the deficiency OF true tax ana ma
the acton Of the ASSESSOR under me a9npry Even nl
by the statute 10 vain. the subject Of taxation and npp
the tax amounted to to Adjudication Of the WIG!
question, ana 10 subject ~ review In tnIs action
Judge Blatchford further says:
The inc ONE taxes due without any assessment
other than made ~ the statute and the taxes
Tor are not taxes covered BY embraced IN the
ss pad The further dsienccs now IN qu" ,tn
on. set up tlAt tie defendant lad what was assess
Ine tinted do Tor any tax winch Wa a.
-ss-d or Tor any amount Of tax which was paid. IL
dcienIaut does up that ne paid any part OF I'll
sued for, but only that he paid as TAX some none
which II not -ued Tor. ,-.-,, .-
til, proposition t.at the United States elected hetwee
the statutory process and this action not tonaue the
uursued the statutory process, ~ uefely cul'clrd
mart o the tax They now seek 10 collect the re-
Euuny un.uuud l. The pro osliiun mat te hcuul OF III
ASSESSOR AL udicauon barring TINS SUIT RON
thr.. propositions inconsistent with the views -
ur.sse la the opinion THE Court IN the savings han
gnrded resort to the statutory remedy the
Cannot b. held he concluded by resort 10 II, iroi
cuectng by suit taxes which they have not colleete
hy pnns such resort So the decision OF the asses
or the assistant A. to the assessment OF TAX ca
hardly denOnInaed Jdical constfuction any NOR
than thu deci the Commissioner Of Internal Rev
| nue. which the opinion OF the Court III me saN,
bank case Is SAID. can hardly be denOmlnateu Juu
9 III. view which Is 10 he deduced from the decision
the Supreme Court In the savings bank case L. ht VI
remedy OF Asse mt and collection OF taxes, hrout
the machinery OF assessors and collectors ~ rehtu
n Tor the prompt periodical ascerainment anu collecunh
. tayes subject always TO concurrent 1Sht 20 brng
sui Tor tax such Latter right being one when eAis
= both to collect tax IN Tie absence W any u,e
1laas III