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Section 969, Appendix, p. 366, has a similar provision to that contained in the above proviso.

For the recovery of taxes, see Regulations, series 7, No. 2, revised, p. 90; Regulations, series 7, No. 14, revised, p. 15.

Circular 319, relative to suits for taxes (34 Int. Rev. Rec., 333); circular 331, relative to suits for taxes, June 21, 1889 (35 Int. Rev. Rec., 197).

Right of the United States to sue for taxes. Set-off's growing out of independent claims can not be pleaded. (United States v. Pacific R. R., 4 Dill., 66.)

ernment of offi

A party claiming a credit which by reason of his laches was not presented to the accounting officers of the Treasury, and disallowed in whole or in part by them, can not set it up in an action brought by the United States against him for the recovery of a debt. (Railroad Company v. United States, 101 U. S., 543.) SEC. 3215. It shall be the duty of the Commissioner of Regulations as Internal Revenue, with the approval of the Secretary of to suits, for gov. the Treasury, to establish such regulations, not inconsist- cers. ent with law, for the observance of revenue officers, district attorneys, and marshals, respecting suits arising under the internal-revenue laws in which the United States is a party, as may be deemed necessary for the just responsibility of those officers and the prompt collection of all revenues and debts due and accruing to the United States under such laws.

The Solicitor of the Treasury is authorized to establish regulations for the observance of district attorneys and marshals in suits in which the United States is a party, other than those arising under the internal-revenue laws. (3377 and 379.)

Duties of district attorneys as to prosecutions, etc. (Appendix, p. 373.)

"Regulations," decisions as to the force and effect thereof, see notes under section 321, p. 47.

Regulations, series 7, No. 12, revised.

Moneys recov be paid to collect ered by suits to

SEC. 3216. All judgments and moneys recovered or received for taxes, costs, forfeitures, and penalties, shall be paid to collectors as internal taxes are required to be paid. ors.

The gross amount of all moneys received for the use of the United States is required to be paid by the officer or agent receiving the same into the Treasury at as early a day as practicable, without any abatement or deduction on account of salary, fees, costs, charges, expenses, or claim of any description whatever. (§ 3617, p. 377, Appendix. See also § 3210 p. 98.)

See section 3621, as amended by act of May 28, 1896, p. 378. Circular No. 203, instructions to United States marshals, April 15, 1879 (25 Int. Rev. Rec., 126.)

Instructions to clerks of courts as to disposition of moneys in
the registry of the court. (Regulations, series 7, No. 12, revised,
p. 17.)

Taxed costs payable to the collector. (United States v.
Wolters (1892), 51 Fed. Rep., 896.)

Costs, as well as all other moneys collected in cases arising
under the internal-revenue laws, are required by the law to be
paid over by the court clerks to the collectors of the districts in
which these cases arise. (Vol. 1, Treas. Dec. (1898), No. 19306.)
Expenses attending the sale of real estate (advertising) are
to be deducted by collectors from the proceeds of sale. Only
the net proceeds arising from such sales are to be deposited to
the credit of the Treasurer of the United States. (Vol. 2, Treas.
Dec. (1899), No. 21470.)

In all cases arising under the internal-revenue laws of the
United States, where moneys are recovered and paid in for the
United States, such moneys must be paid over to the collectors
of internal revenue under the provisions of section 3216 of the
Revised Statutes of the United States. The bills of costs in

Dues from delin

quent collector to

sale.

such cases include the fees taxed by law for the marshals and United States attorneys, and, by virtue of section 983 of the Revised Statutes, the bill of costs in each case is a part of the judgment and will be paid to the collector as above indicated. (Attorney-General's instructions to United States marshals, attorneys, etc., January 1, 1899, p. 60.)

SEC. 3217. When any collector fails either to collect or to be collected by render his account, or to pay over in the manner or within distraint and the times provided by law, the (First) Comptroller of the Treasury shall, immediately after evidence of such delinquency, report the same to the Solicitor of the Treasury, who shall issue a warrant of distress against such delinquent collector, directed to the marshal of the district, expressing therein the amount with which the said collector is chargeable, and the sums, if any, which have been paid over by him, so far as the same are ascertainable. And the said marshal shall, himself, or by his deputy, immediately proceed to levy and collect the sum which may remain due, with five per centum thereon, and all the expenses and charges of collection, by distress and sale of the goods and chattels, or any personal effects of the delinquent collector, giving at least five days' notice of the time and place of sale, in the manner provided by law for advertising sales of personal property on execution in the State wherein such collector resides. And the bill of sale of the officer of any goods, chattels, or other personal property, distrained and sold as aforesaid, shall be conclusive evidence of title to the purchaser, and prima-facie evidence of the right of the officer to make such sale, and of the correctness of his proceedings in selling the same. And for want of goods and chattels, or other personal effects of such collector, sufficient to satisfy any warrant of distress, issued as aforesaid, the real estate of such collector, or so much thereof as may be necessary for satisfying the said warrant, after being advertised for at least three weeks next before the time of sale, in not less than three public places in the collection district, and in one newspaper printed in the county or district, if any there be, shall be sold at public auction by the marshal or his deputy. Upon such sale, the marshal shall make and deliver to the purchaser of the premises sold a deed of conveyance thereof, to be executed and acknowledged in the manner and form prescribed by the laws of the State in which said lands are situated, and said deed so made shall invest the purchaser with all the title and interest of the defendant named in said warrant, existing at the time of the seizure thereof. And all moneys that may remain of the proceeds of such sale of personal or real property, after satisfying the said warrant of distress, and paying the reasonable costs and charges of sale, shall be returned to the proprietor of the property sold as aforesaid.

See sections 3624 and 3625, in Appendix, p. 380, as to proceedings against officers failing to account for public moneys. The First Comptroller of the Treasury shall hereafter be known as Comptroller of the Treasury.

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He shall perform the same duties and have the same powers and responsibilities (except as modified by this act) as those now performed by or appertaining to the First and Second Comptrollers of the Treasury and the Commissioner of Customs;

and all provisions of law not inconsistent with this act, in any
way relating to them or either of them, shall hereafter be con-
strued and held as relating to the Comptroller of the Treasury.
(§ 4, act July 31, 1894; Supp. U. S. Rev. Stat., vol. 2,

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charged with,

p. 213.) SEC. 3218. Every collector shall be charged with the Collectors to be whole amount of taxes, whether contained in lists trans- what. mitted to him by the Commissioner of Internal Revenue, or by other collectors, or delivered to him by his predecessor in office, and with the additions thereto, with the par value of all stamps deposited with him, and with all moneys collected for penalties, forfeitures, fees, or costs; and he shall be credited with all payments into the Treasury made as provided by law, with all stamps returned by him uncanceled to the Treasury, and with the amount of taxes contained in the lists transmitted in the manner heretofore provided to other collectors, and by them receipted as aforesaid; also with the amount of the taxes of such persons as may have absconded, or become insolvent, prior to the day when the tax ought, according to the provisions of law, to have been collected, and with all uncollected taxes transferred by him or by his deputy acting as collector to his successor in office: Provided, That it shall be proved to the satisfaction of the Commissioner of Internal Revenue, who shall certify the facts to the (First) Comptroller of the Treasury, that due diligence was used by the collector. And each Due diligence. collector shall also be credited with the amount of all property purchased by him for the use of the United States, provided he faithfully account for and pay over the proceeds thereof upon a resale of the same as required by law.

See note under section 3217 as to change from First Comptroller to Comptroller.

Claims for credit. (§ 951, p. 391, Appendix.)

Certificate of due diligence condition precedent to allowance of credit. (United States v. Kimball, 101 U. S., 726.)

Question of due diligence and other questions relative to collectors' accounts considered. (United States v. Barton Able, 15 Int. Rev. Rec., 41, 50.)

Duplicate charges arising from the charging of a collector with assessed special taxes subsequently paid by stamps are adjusted by Auditor of the Treasury Department through claims on Form 66, and those arising from assessment of spirit taxes subsequently paid by stamps are adjusted through claims on Form 66A. But see Form 325, and column 104, Form 23.

Death, etc., of

collector; uncol

See section 3444, p. 339, articles in bonded warehouses. SEC. 3219. In case of the death, resignation, or removal of any collector, all lists and accounts of taxes uncollected fected balances. shall be transferred to his successor in office as soon as such successor is appointed and qualified, and it shall be the duty of such successor to collect the same.

etc.

SEC. 3220. The Commissioner of Internal Revenue, sub- Remission and refunding of ject to regulations prescribed by the Secretary of the Treas- taxes, penalties, ury, is authorized, on appeal to him made, to remit, refund, and pay back all taxes erroneously or illegally assessed or collected, all penalties collected without authority, and all taxes that appear to be unjustly assessed or excessive in amount, or in any manner wrongfully collected; also to repay to any collector or deputy collector the full amount of such sums of money as may be recovered against him in any

court, for any internal taxes collected by him, with the cost and expenses of suit; also all damages and costs recovered against any assessor, assistant assessor, collector, deputy collector, or inspector, in any suit brought against him by reason of anything done in the due performance of his official duty: Provided, That where a second assessment is made in case of a list, statement, or return which in the opinion of the collector or deputy collector was false or fraudulent, or contained any understatement or underval uation, such assessment shall not be remitted, nor shall taxes collected under such assessment be refunded, or paid back, unless it is proved that said list, statement, or return was not false or fraudulent, and did not contain any understatement or undervaluation.

See sec. 989, p. 371, as to certificate of probable cause. Abatements and refunding may also be made to distillers in cases of unavoidable accident or misunderstanding (§ 3309a, p. 191).

A rejected claim may be prosecuted against the collector, and an allowed claim not paid may be sued for in the Court of Claims. Presentation to collector is equivalent to presentation to Commissioner. (United States r. Real Estate Savings Bank, 104 U.S. (14 Otto), 728; 28 Int. Rev. Rec., 87.)

It is a principle universally recognized and enforced in the courts of law that an action can not be maintained for the recovery back of money paid in the discharge of a tax illegally assessed, unless the payment was made under protest. But that principle has as uniformly been held by the Commissioner of Internal Revenue and other officers of the Department as altogether too technical and too exacting for application to the refund of taxes under this section, and from the beginning no proof of protest has ever been required. (Real Estate Savings Bank v. United States (1880), 16 Ct. Clms., 335; 27 Int. Rev. Rec., 154.)

No written notice of protest required. (Wright v. Blakeslee, 101 U. S., 174; 20 Int. Rev. Rec., 179.)

Government does not pay interest except under special contract or by virtue of special law providing it. (7 Op. Atty. Gen., 523; 9 ibid., 57, 449.)

Where an illegal tax has been collected, the citizen who has paid it, and has been obliged to bring suit against the collector, is entitled to interest, in the event of recovery, from the time of the illegal exaction. (Erskine v. Van Arsdale, 15 Wall., 75.) When a person accepts from the Government, without objection, payment of the sum illegally exacted, he gives up his right to sue for interest. (Stewart v. Barnes, 153 U. S., 456.)

Law relative to interest in suits against collectors reviewed. (Commissioners of Sinking Fund of Louisville p. Buckner, 48 Fed. Rep., 533.)

The Government is not liable for interest after final judgment. (United States ex rel. v. John Sherman, 98 U. S., 567; 25 Int. Rev. Rec., 198; Schell v. Cochran, 107 U. S., 626.)

United States does not pay interest on any claim which is due, because it is supposed to be always ready to pay. (Stephani's Case, 1 Lawrence Dec., 35; 26 Int. Rev. Rec., 313.)

It is a well-settled principle that interest is not allowed on claims against the United States unless the Government has stipulated to pay interest or it is given by express statutory provision. (Angarica v. Bayard, 127 U. S., 260; United States v. New York, 160 U. S., 619. See §§ 963, 966, Appendix, p. 368.)

A judgment against a collector may be paid to the claimant or to the collector. (34 Int. Rev. Rec., 39.)

If an appeal is taken from an assessment and decided against the appellant, and the tax is afterwards collected, it is not necessary to take a second appeal after payment before commencing suit to recover the tax. (San Francisco Savings Society v. Cary, 2 Sawy., 393; 17 Int. Rev. Rec., 109.)

Powers conferred upon the Commissioner relative to refund of taxes. (Barnett et al. v. United States, 16 Ct. Clms., 515.) When the Commissioner of Internal Revenue has rendered a decision allowing a claim, and has issued his certificate accordingly, but payment is refused by the accounting officer, the claimant is entitled to recover in a suit in the Court of Claims. (Kaufman v. United States, 96 U. S., 567, affirming 11 Ct. Clms., 659; 24 Int. Rev. Rec., 135. See § 3426, p. 293.)

The words wrongfully collected do not give jurisdiction for refunding further than the word illegally. No equity powers conferred on the Commissioner of Internal Revenue. (Ridgway Case, 16 Op. Atty. Gen., 667.)

Commissioner authorized, not obliged, to refund. (13 Op. Atty. Gen., 439.)

Right of Commissioner to reconsider claim for refund and revoke allowance before payment. (Ridgway v. United States, 18 Ct. Clms., 707; 29 Int. Rev. Rec., 197.)

What constitutes a final award by the Commissioner. (Stotesbury . The United States, 23 Ct. Člms., 285; 34 Int. Rev. Rec., 142; 146 U. S., 196.)

Right of Commissioner to refund, notwithstanding advice of Secretary to the contrary. (Sybrandt v. United States, 19 Ct. Clms., 46; 30 Int. Rev. Rec., 135.)

Reopening rejected claims for refunding. (14 Op. Atty. Gen., 275; 18 Int. Rev. Rec., 28.)

United States not liable for unauthorized wrongs done by revenue officers. (United States v. Cummings; appeal from Court of Claims, 35 Int. Rev. Rec., 142; 130 U. S., 453.)

The Government can not be made responsible for the acts of its officers where the acts complained of were in themselves torts.

The general principle is that governments can not be held liable for unauthorized wrongs inflicted by their officers, though occurring while they are engaged in the discharge of official duties. (Gibbons v. United States, 8 Wall., 269; Langford v. United States, 101 U. S., 341; United States v. Jones, 131 U. S., 116; Hill v. United States, 149 U. S., 593; Joel Mann v. United States, 32 Ct. Clms., 581. See notes under sec. 987, p. 371.)

The Commissioner of Internal Revenue alone has authority to award an allowance for the refund of taxes illegally assessed and paid, and his award is final and conclusive unless impeached for fraud or irregularity.

The Secretary of the Treasury has authority to make a reg ulation that appeals for refund of taxes should be presented through collectors. When, under such regulations, an appeal is delivered to a collector within two years after the tax is paid, it is a seasonable presentation to the Commissioner within the terms of the statute.

Duties of the Comptroller of the Treasury. (Real Estate Savings Bank of Pittsburg v. The United States, 16 Ct. Clms., 335; 27 Int. Rev. Rec., 153.)

case

Where the Commissioner of Internal Revenue, in a within the scope of his authority and jurisdiction, has ordered a refund of an overpaid tax, a court can not inquire as to the sufficiency of the evidence before him. (Woolner v. United States, 13 Ct. Clms., 355; 24 Int. Rev. Rec., 181.)

Although the Comptroller of the Treasury must sign a warrant for the payment of a refund allowed by the Commissioner of Internal Revenue, neither he, nor any accounting officer, has authority to review the Commissioner's decision. (Bank of Greencastle v. United States, 15 Ct. Clms., 225; 26 Int. Rev. Rec., 126.)

Decisions by the Commissioner of Internal Revenue, in cases of refunding taxes, are binding, and, in the absence of fraud or mistake in calculation, not subject to revision. (Dugan v. United States, 34 Ct. Clms., 458; Vol. 1, Treas. Dec. (1899), No. 21285. See also Davidson v. United States, 21 Ct. Clms., 298; Nixon v. United States, 18 Ct. Clms., 448; 29 Int. Rev. Rec., 157; Louisville v. United States, 31 Ct. Clms., 1.)

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