Every evening, Wilmington daily commercial., 1922-06-13

| tent to evade tax or wilful attempt In
any manner to defeat or evade tax
This section shall not apply TO suits
or proceedings for the collection OF
taxes under Section $50 OF this act
nor to suit or proceedings begun Mt the
time OF the passage OF this act"
| The later paragraph OF the above
section was apparently inserted be-
cause Section $50 contains It's own
provisions for limitation of tlmc of
making assessments. extension with
the consent of tho tax payer and limi-
tation or time for beginning suits or
proceedings.
Under the general system for col
lection OF taxes II would no doubt be
held that tho plaintiffs remedy would
be TO pay the tax under protest and
bring suit against the collector to re-
cover 1t back But the plaintiff argues
that, II he should pay the tax TO the
collector. he would on several grounds
be debarred from setting up ae basis
OF recovery against the collector
either that tho return made by the
commissioner or the assessment was
invalid or that the stock OF the Della
|
tin was assessed In excess OF It's fair
value for the purpose OF determining
the tax. To sustain this contention
the plaintin cites Section 2b2 OF the
Revenue Act OF 1918. re-enacted as
Section 262 of the Revenue Act OF
1921, az follows: IF upon examina-
ton of any return of income made
pursuant to the Act of October
3. 1918, 1t appears that an
amount of income - tax has been
paid In excess of that properly due,
then notwithstanding tho provislons
OF Section 1928 OF tho Revised Statutes.
the amount of the excess shall be
credited against any income - .
taxes. or instruments thereof then due
from the taxpayer under any other re
turn. and any balance OF such excess
shall be Immediately refunded TO the
taxpayer: Provided that no such
credit or refund shall be allowed o.
made after five years from tho date
when the return was due. unless be-
fore the expiration OF such Ave years
claim therefor IL filed by the tax
payer"
As the Ave years from the date when
: the return was due, namely March
i, 1915, has long since expired, the plain
I meaning OF the above section IL that
I no credit or refund could now be law
- fully allowed or made because no claim
therefor was filed by the plaintiff
8 within the Ave years. 1t IL evident
e that Congress intended by the pro
I visions of Section $50 (d) OF the ac
% ~ 10
}. Limitation for the beginning of suits o.
Il proceedings for the collection of tn,
taxes enumerated. II the revenue OF
. fcers should unduly delay the ASSESS
Y ment of taxes and tho commencement
u OF proceedings for collection, Congress
has determined that Ave years afte
= the due day OF the return Ia q reason
able time TO bring to an end the rlsh
y TO collect
On the other hand. Congress ha
=, placed Limitation upon the taxpaye
by the provisions of Section 252 @
- the Act Of 1921 as 10 claims for take
:. paid in excess OF those lawfully du,
" II the plaintiff pays tho amount de
- manded. no remedy nj law Ia left ope
a 70 him far the recovery of such OK
~ cess.
~ II n suit were begun against the tax
AZ payer after tho running OF the statu,
,e OF limitations. ne could assert ns
l. defense tho various grounds urged !
in support Of the present bill. But. II IN
ID collector should proceed TO seize on
g. sell the plaintiffs property. ne woul
m be deprived of any remedy excepting
r suit Mt law against the collccto
OF Meanwhile. his freehold and proper'
would have been subject 10 seizure ar
fs sale and his remedy Mt law would n,
e. adequately repair such injury
OF As was said in Ogden City v
-. Armstrong. 1853 L. S. 224:
al I'm Union Pacific Railway VS.. Che
al enne. ll3. L. S. SIG. 525. this coul
ID, through Mr.. Justice Bradley. said:
But IN 1t contended that the cor
AT. plainant should have sought rer
n edy at law and not in equity. It ca
zee not be denied that bills in equity
as restrain the collection OF taxes
- legally imposed have frequently be
rs sustained. But II is we'll settled IN
d there ought TO be some eQuitah
or ground for relief besides the mere
ne legality Of the tax; for 1t must
re presumed that the law furnished
de RANDY for ilIauaI ta,otion 7, of,
ny happens. however, that the case is su
is that the person Illegally taxed wou
III suffer irremediable damage, or TO
NIX subjected TO vexatious litigations
INT he were compelled to resort to
irt legal remedy alone. For example,
Ns' the legal remedy consisted only of
IN action TO recover back the mon
10 after II had been collected by d
TX tress and sale OF the Taxpayers Ian
W the loss of his freehold by means
io' a tax sale would be a mischief hi
cry TO be remedied. Even IL the Gle
lno cast upon his title by a tax un,
hin which q .a,. co,,ld ~, ,ado -,,o,,Is
TIC grievance which would entitle +
~ TO go into a court Of equity for relic
lily onn,;as aHt,,- % ~ ,,,,,.s,n,,, a., a..
slant case. While Section 1924 has b,
,at strictly construed In view Of
49, remedial system providing for re
-. edies Of the stax payer against
L. imposition of illegal taxes follow
,as Mr.. Justice Blatchford's compreh
,,o, sive discussion Of the subject In Sny
o. vs. Marks, 100 u. 8. 1879, Congress
ard since added to the system the limi
,raI ton contained In the Act of 1891
for reading these new provisions In C
ecn nection with Section 1924. l can
nd, cohcei'e tnAA Cohsrecs lhtended
ra- tax payer to be rtgidly held to the
the hioltlons OF section s22s II the en
Tax should be to nullify tho inhibiti