*3954 An amount of money assessed against and paid by the petitioners in 1922 as a state inheritance tax under a law, which was later held to be unconstitutional, which money was refunded to the petitioners in 1925, is not a legal deduction from gross income in the income-tax return of petitioners for 1922.
*1123 This is a proceeding for the redetermination of deficiencies in income tax for the years 1922 and 1923 in the respective amounts of $678.04 and $7.46, total $685.50, only a part of which amounts are in issue. The petitioners have waived certain issues raised by their petition. The only question for the determination of the Board is whether the respondent erred in disallowing as a deduction from the petitioners' gross income of 1922 the amount of $7,599.10 paid under protest to the State of New Hampshire as an inheritance tax which was recovered back in 1925, after the law had been declared by the Supreme Court of New Hampshire to be unconstitutional. The facts were stipulated.
FINDINGS OF FACT.
The petitioners are husband and wife and residents*3955 of Dover, N.H. They filed a joint return of income for the calendar year 1922 upon the basis of cash receipts and disbursements. In such return they deducted from gross income $7,599.10 representing money paid in 1922 to the State of New Hampshire as inheritance tax levied under the 1919 inheritance tax laws of that State (Laws of 1919, New Hampshire, sec. 1, ch. 27) upon the right of the petitioners to receive an inheritance from the estate of the late Frank B. Williams, of Dover, N.H. The deduction of the inheritance tax of $7,599.10 was disallowed by the Commissioner, who, under date of April 15, 1926, notified the petitioners by registered mail of the final determination of deficiency against them for the year 1922 in the amount of $678.04 resulting from the aforesaid disallowance. The petitioners have appealed to this Board from such disallowance of the deduction of the inheritance tax paid.
Under date of October 11, 1922, the Attorney General of the State of New Hampshire issued a statement to the petitioners that the said amount of $7,599.10 was due the State as an inheritance tax. On November 10, 1922, the Treasured of the State of New Hampshire served notice and demand*3956 upon the petitioners for the payment of the tax. On November 25, 1922, the petitioners paid under protest the inheritance tax of $7,599.10.
After paying the sum of $7,599.10 to the State of New Hampshire in February, 1923, the petitioners commenced suit for the recovery of a portion thereof. On April 23, 1923, suit was instituted for the recovery of the entire aforesaid amount paid upon the grounds that the statute under which the taxes had been levied and paid was unconstitutional. On June 26, 1924, the Supreme Court of New Hampshire in the case of , decided that the 1919 inheritance tax law of New Hampshire was unconstitutional.
*1124 The petitioners recovered the sum of $7,599.10 from the State of New Hampshire in 1925.
OPINION.
SMITH: The question presented by this proceeding is whether the petitioners are entitled to deduct from gross income in their joint income-tax return for 1922, $7,599.10 assessed against and paid by them to the State of New Hampshire as an inheritance tax under a law which was declared by the Supreme Court of New Hampshire in 1924 to be unconstitutional and which tax was recovered*3957 back by the petitioners in 1925. The deduction of the $7,599.10 was disallowed by the respondent in determining the deficiency upon the ground (1) that the law under which the money was collected was unconstitutional, and (2) that in any event, since the petitioners have been made whole in respect of the amount paid prior to the filing of their petition and are in statu quo, no allowance of a deduction for the amount paid and recovered can be made.
The petitioners claim the deduction under section 214(a)(3) of the Revenue Act of 1921, which permits an individual to deduct from gross income in his income-tax return -
Taxes paid or accrued within the taxable year except (a) income, warprofits, and excess-profits taxes imposed by the authority of the United States, * * *. For the purpose of this paragraph estate, inheritance, legacy, and succession taxes accrue on the due date thereof except as otherwise provided by the law of the jurisdiction imposing such taxes.
In support of their contention that the amount paid is a legal deduction, petitioners submit that at the time the tax way paid and the return for 1922 was filed they had no knowledge that the law under which the*3958 tax was collected was unconstitutional and that there was no certainty that the amount paid would ever be recovered; that the incoming taxing statute contemplates a finality of the tax return for each year on the basis of the facts known in that year; and that the fact that the money was recovered in 1925 is immaterial in the determination of the deduction of the amount paid as a tax in 1922.
As to the effect of an unconstitutional law the respondent states:
* * * The general rule is that an unconstitutional statute, though having the form and name of law, is in reality no law, but is wholly void, and in legal contemplation is as inoperative as if it had never been passed. Since an unconstitutional law is void, it imposes no duties and confers no power or authority on anyone; it affords protection to no one, and no one is bound to obey it, and no courts are bound to enforce it. When a judgment of any court is based on an unconstitutional law, it has been said that it has no legitimate basis at all, and is not to be treated as a judgment of a competent tribunal, * * *.
* * * The general rule is that an unconstitutional act of the legislature protects no one. It is said that*3959 all persons are presumed to know the law, meaning that ignorance of the law excuses no one. Consequently, if any person *1125 acts under an unconstitutional statute, the general rule is that he does so at his peril, and must take the consequences. * * * (6 R.C.L. 117, and cited cases.)
In , the court stated at page 442:
* * * An unconstitutional act is not a law; it confers no rights; it imposes no duties; it affords no protection; it creates no office; it is, in legal contemplation, as inoperative as though it had never been passed.
We think that it is unnecessary in this case to consider whether a taxpayer is entitled ever to deduct from gross income taxes paid under an unconstitutional law. In the instant case it is sufficient that the taxes which were paid in 1922 were refunded to the petitioners prior to the date of the filing of this appeal. The facts are substantially similar to those which were under consideration by the Board in . In that case we stated:
While it appears that at the end of the year 1920 this taxpayer estimated its liability under the*3960 breached contracts with approximate accuracy and set the sum up on its books of account and then made its income and profits-tax return in accordance with such books, we have now before us a review of that income and profits-tax return and in making such review it is our duty to consider not only the facts known and recorded at the close of December, 1920, but also those same facts as modified by subsequent events. These subsequent events have developed the fact that the damages and losses sustained by the taxpayer on account of the breach of the Monongahela contract were settled for the sum of $5,500, and that the damages and losses sustained by the taxpayer on account of the breach of the Campbell contract were finally determined and settled for the sum of $29,742.40. With these facts before us, and for the purpose of determining the final net taxable income of the taxpayer for the year 1920, the amounts of damages and losses as finally determined must now be substituted for the estimate originally made, and in place of the deductions claimed by the taxpayer in his return and disallowed by the Commissioner the losses and damages as finally settled must be allowed as the deduction*3961 contemplated by the law.
The action of the respondent in disallowing the deduction is sustained. Cf. .
Reviewed by the Board.
Judgment will be entered for the respondent.