(concurring).
I concur in the result reached in the majority opinion, and I agree that section 1106 (a) of the Revenue Act of 1926 (26 USCA § 1249. note) is not retroactive.
The officials of the Treasury Department collected the amount which plaintiff seeks to recover, as a tax imposed by the Revenue Act of 1918 for the fiscal year ended November 30, 1918, and as interest.
The defendant now insists that the retroactive repeal of section 1106(a) of the Revenue Act of 1926 by section 612 of the Revenue Aet of 1928 (45 Stat. 875) and the enactment of section 611 of the' latter aet (26 USCA § 2611) revived the tax originally imposed by the 1918 aet (40 Stat. 1057). It is not controverted that the amount collected, other than the interest, which was assessed in May, 1920, was then due as a tax imposed by the Revenue Act of 1918.
The plaintiff insists that section 611 of the Revenue Aet of 1928 (26 USCA § 2611) cannot bar the recovery of the amount paid, for the reason that this section is unconstitutional and void, in that it deprives it of a vested right which could not be taken away by subsequent legislation of Congress. The assessment in May, 1924, was a jeopardy assessment made without compliance with the provisions of law entitling the taxpayer to a hearing. This entitled plaintiff to file a claim for abatement, which was done, and no bond was required by the collector. The statutory period of limitation within which a tax for the fiscal year 1918 could be collected from plaintiff expired under the statute and the consents entered into between the plaintiff and the Commissioner on December 31, 1925, at which time the tax had not been collected, and the Commissioner of Internal Revenue had made no decision of the claim for abatement. The Commissioner rendered his decision on April 21, 1926. Collection was not made until August 17, 1926.
By the provisions of section 1106(a) of the 1926 act (26 USCA § 1249 note), which became effective February 26,1926, the plaintiff’s liability for the tax was extinguished, and ihere was, therefore, no authority in law after December 31, 1925, for the collection of any amount from the plaintiff as a tax for the fiscal year ended November 30, 1918. The evident purpose of the retroactive repeal of 1106(a) of the 1926 act and the enactment of sections 607 and 611 of the 1928 aet (26 USCA §§ 2607, 2611) was to restore the system for the assessment and collection of taxes to what it was on February 26, 1926, when section 1106(a) of the Revenue Aet of 1926 extinguished the liability for any tax which was barred and had not been collected prior to that date and for a tax which should thereafter become barred, and provided for the refund only of the excess over the correct tax liability in respect of a tax which had been collected after the statutory period of limitation, but before the passage of that act, with the added provision contained in section 611 (aet of 1928) which was retroactive authorizing the retention by the government of a tax collected after the expiration of the statutory period of limitation for collection,, if the amount so collected was assessed prior to June 2,1924, and within the period of limitation provided by law, if the collection was stayed beyond the period of limitation by the filing of a claim in abatement.
I am of opinion, however, that none of . the provisions of the Revenue Aet of 1928 accomplished the result of reviving the liability in respect of a tax which became barred between February 26,1926, and May 28,1928, even if it be assumed that Congress had constitutional authority under its broad powers to lay and collect taxes,- retroactively to recreate a liability for a tax which had been imposed by prior revenue acts and which tax *891became barred between these dates and the liability for which had been extinguished by section 1106(a) of the 1926 act. Taxes are not imposed by implication and we may not hold that a liability for a tax once imposed, but extinguished, is revived or reimposed by a retroactive repeal of the statute which extinguished the liability. Prior to the enactment of section 12 of the Revised Statutes, now section 28, U. S. Code, Title 1 (1 USCA § 28) the repeal of an aet which repealed a former act operated to revive such former aet. United States v. Philbrick, 120 U. S. 54, 7 S. Ct. 413, 30 L. Ed. 559. And, while the provisions of section 1106(a) extinguishing the liability for a tax barred by the statute of limitation was not an act expressly repealing the Revenue Act of 1918, in effect a tax imposed by the act of 1918 and barred by the statute of limitation was abrogated and annulled by the new and substantive provision of this section as completely as if express words repealing the imposition of such tax had been used, and no language can he found in any of the provisions of the Revenue Act of 1928 reimposing the tax or recreating the liability therefor which had been extinguished by section 1106 (a) of the 1926 aet. Section 612 of the Revenue Aet of 1928 (45 Stat. 875) retroactively repealing section 1106(a) of tho 1926 act cannot be construed as reviving the liability for the tax imposed by the Revenue Act of 1918. Nor can section 611 of the 1928 aet (26 USCA § 2611) be of any help to the defendant in this regard, for it only authorizes the government to retain the amount of any taw assessed and paid after the statute of limitation, or assessed before and paid after the limitation period. At the time the amount here in question was collected from tho plaintiff there was no ¿jax in existence which could have been stayed by the abatement claim. It seems to me, therefore, that the provisions of section 611 can only be applied to those cases where the tax was collected after the expiration of the statute of limitation, hut prior to the enactment of the Revenue Aet of 1926, and the collection of tax as to which the statute of limitation expired before collection on a date subsequent to the enactment of the Revenue Act of 1928. So far as concerns the taxpayer’s right to recover the amount of a tax collected after the expiration of the statute of limitation, the first elanse of section 1106(a) of the 1926 aet extinguishing the liability gave the taxpayer no greater right than what he had before, because, if he were compelled to pay a tax that was barred by limitation, he could recover it. Bowers v. New York & Albany Lighterage Co., 273 U. S. 346, 47 S. Ct. 389, 71 L. Ed. 676. But, as substantive law, the provisions of section 1106(a) extinguishing the liability had a different and greater effect upon the right of the government to retain an amount collected while there was no liability for it as a result of tho repeal of the statute which extinguished the liability of the taxpayer. Dobbins v. Commissioner of Internal Revenue (C. C. A.) 31 F.(2d) 935; Erie Coal & Coke Co. v. Heiner (D. C.) 33 F.(2d) 135; A. T. Wettengel v. Robinson et al., Trustees, 150 A. 658, decided by the Supreme Court of Pennsylvania May 12, 1930. Para. 1084, P. H. Fed. Tax Service, 1930, vol. 1.
I am of opinion, therefore, that plaintiff is entitled to recover because its liability for any amount was extinguished before the amount in question was collected, and such liability has not been revived.
I do not deem it necessary to pass upon the constitutionality of the provisions of the 1928 act. I am not prepared to agree that tho extinguishment of a liability for a tax, which is a debt due tho sovereign, creates such a vested or property right as was beyond the control of Congress. The obligation to pay taxes rests not upon tho privileges enjoyed or the protection given to a citizen but upon necessity of money for the support of tho government, hut the citizen reeeivés compensation therefor in privileges and protection. A tax is a demand of sovereignty. In Loan Association v. Topeka, 20 Wall. 655, 663, 22 L. Ed. 455, the court said: “Given a purpose or object for which taxation may he lawfully used and the extent of its exercise is in its very nature unlimited. It is true that express limitation on tho amount of tax to bo levied or the things to bo taxed may bo imposed by constitution or statute, but in most instances for which taxes are levied, as the support of government, the prosecution of war, tho National defence, any limitation is unsafe. The entire resources of tho people should in some instances be at the disposal of the government. The power to tax is, therefore, the strongest, the most pervading of all the powers of government, reaching directly or indirectly to all classes of the people,”
There are many considerations which would enter into tho question of the authority of Congress to recreate a liability to the government for a tax that has been extinguished. A tax that is due is a debt due the sovereign, and the ordinary statute of limitation relates only to tho remedy, and the repeal of the limitation provision, even after *892the debt has become barred, does not deprive the citizen of his property without due process of law in violation of the Fifth Amendment. Campbell v. Holt, 115 U. S. 620, 6 S. Ct. 209, 29 L. Ed. 483; Wm. Danzer & Co., Inc., v. Gulf & Ship Island R. R. Co., 268 U. S. 633, 45 S. Ct. 612, 69 L. Ed. 1126. Is the situation any different where a citizen is indebted to the government for a valid tax, the liability for payment of which he.is relieved, and shortly thereafter Congress, decides to recreate the liability and remove the bar of the statute? The sovereign is not bound by the statute of limitation except by its consent, and in respect of taxes it would seem that, although the tax had become barred, Congress could have repealed the statute of limitation and thereby revived the right of the Government to collect. Campbell v. Holt, supra. May not Congress, also, even' though the liability for a tax as to which the statute has run has been extinguished, repeal the limitation statute and the statute extinguishing the liability for the tax and by appropriate legislation recreate the liability? It would seem that the only objection that could be raised to such action would be the power of Congress retroactively to recreate a liability for a tax that, beyond question, had once been lawfully imposed. Cf. City of Seattle v. Kelleher, 195 U. S. 351, 25 S. Ct. 44, 49 L. Ed. 232; United States v. Heinszen & Co., 206 U. S. 370, 27 S. Ct. 742, 51 L. Ed. 1098, 11 Ann. Cas. 688; Billings v. United States, 232 U. S. 261, 34 S. Ct. 421, 58 L. Ed. 596; Rafferty v. Smith, Bell & Co., Ltd., 257 U. S. 226, 42 S. Ct. 71, 66 L. Ed. 208. If Congress has authority retroactively to impose a tax and thereby create a debt for the tax to the sovereign in the first instance, has it not equal authority to reimpose and revive a tax that has been abrogated by a statute of limitation that relieved the taxpayer from liability? The case of Wm. Danzer & Co., Inc. v. Gulf & Ship Island R. R. Co., supra, was a suit for damages between private persons, and the court held that to construe section 206(f) of the Transportation Act (49 USCA § 74), suspending the statute of limitations during federal control of railroads, retroactively, so as to create a liability that was barred at the time of its enactment, would be to deprive the railroad company of its property without due process of law in violation of the Fifth Amendment. That case is not necessarily authority for the proposition that the same rule would apply to the sovereign power of taxation.