ASSESSMENTS AND COLLECTIONS 113
Action against Internal revenue collector to recover taxes is personal and can
not be maintained against his successor in office. Successor to collector who
collected taxes should not be submitted as defendant, (Smietanka v. Indiana
Steel Co., 257 U. S.,, 1; T. D. 3304; Union Trust Co. v. Wardell, 258 TU. S., 537;
T. D. 3338; Levy et al. v. Wardell, 258 U. S., 542.)
The words ‘cause of action ” mean the right of action. (Wright wv. Blakeslee,
101 U. S., 174; 26 Int. Rev. Rec, 179.) .
As to claim pending before Commissioner June 6, 1872. (James v. Hicks, 110
U. 8, 272, affirming Hicks v. James, 48 Fed., 542.)
Jurisdiction, (City of Philadelphia v. Collector, & Wall, 720.)
State statute of limitations as affected by the Federal statute of limitations.
(Braun v. Sauerwein, 10 Wall, 218.)
A person can not recover taxes pald which were in fact due, even though the
manner of their assessment and collection was unauthorized. (Schafer v. Craft,
144 Fed., 907; T. D. 1291; aff, 153 Fed., 175.)
Suits must be brought within two years after the cause of action accrued.
{Cheatham v. United States, 92 U. S., 85; 22 Int. Rev. Rec.,, 30; Kings County
Savings Institution ». Blair, 116 U. S., 200: 32 Int. Rev. Rec., 30.)
The cause of action accrues at the expiration of six months from the time of
appeal by claim to the Commissioner, or at time of rejection of claim, if such action
is taken before the expiration of six months, and the right of action is barred
iu Briss thereafter. (Schwartzchild & Sulzberger v. Rucker, 143 Fed., 656;
. . ia.
The two years commences to run from the decision of the Commissioner on
appeal; the claimant has the option to bring suit after six months from date of
appeal in case decision is delayed, or wait until the Commissioner has rejected
the claim and bring suit within two years from that time. (Merck v. Treat, 174
Fed., 388: T. D. 1405.)
Sec. 3228. All claims for the refunding of any internal tax alleged to have
oeen erroneously or illegally assessed or collected, or of any penalty alleged to
have been collected without authority, or of any sum alleged to have been ex-
cessive or in any manner wrongfully collected, must be presented to the Com-
missioner of Internal Revenue within two years next after the cause of action
accrued : Provided, That claims which accrued prior to June six, eighteen hun-
dred and seventy-two, may be presented to the Commissioner at any time within
one year from said date. But nothing in this section shall be construed to
revive any right of action which was already barred by any statute on that date.
Amended by section 1316 of the Revenue Act of 1921, section 1012 of the Rev-
enue Act of 1924, and section 1112 of the Revenue Act of 1926. ’
Informal application regarded as a claim within the meaning of this section.
(14 Op. Atty. Gen., 615.)
When this section does not apply. This limitation does not apply to claims
for the redemption of stamps. (15 Op. Atty. Gen., 426.)
This limitation does not apply to claims under section 3221. (Sec. 149, U. 8. C))
Section 3228 does not apply to claims for refund of legacy taxes under section
3, act of June 27, 1902. (13 Comp. Dec., 707.)
The cause of action accrues within the meaning of section 3228 when the tax
is paid. ('I. D. 237.)
Act removing bar in case of legacy taxes and Spanish War revenue taxes. (Act
July 27, 1912, 37 Stat., 240.)
The two years’ limitation is applicable in cases in the Court of Claims and not
the six years’ limitation of section 156, Judicial Code. (Ft. Pitt Gas Co. v. United
States, 49 Ct. Clms., 224; T. D. 1979.)
SECTION 1. [Act of February 28, 1916 (39 Stat., 14, 20).] The Commissioner
of Internal Revenue is authorized to reopen and allow claims for taxes for the
recovery of which suits are pending and which would be allowable under the de-
cision of the Supe Court in the case of McCoach, collector, against Minehill
and Schuylkill Haven Railroad Company; and there is hereby appropriated for
the payment of such claims a total sum not to exceed $300,000, this appropria-
tion to be available for the payment of such of the aforesaid claims as are not
payable out of moneys heretofore appropriated and available during the fiscal year
ending June thirtieth, nineteen hundred and sixteen, for the payment of claims.
Condition precedent to suit under this section not applicable to inheritance
taxes imposed by act of June 13, 1898, if taxpayer has complied with section 3
of the act of June 13, 1898, and section 2 of the act of July 27. 1912, and pre-
sented claim for refund. (Rand v. United States, 249 U. S.. 503; T. D. 2886.)
Removing bar of two years’ limitaticn in cases of refund of income taxes. See
chapter 19, “Income Taxes.”