(dissenting).
United States v. Updike, 281 U. S. 489, 50 S. Ct. 367, 74 L. Ed. 984, dealt with a.bill filed after the Revenue Act of 1926 became law, section 280 (a) ' (1) of which expressly applied the limitations of suits against taxpayers to suits against transferees. The argument of the Treasury had been that the suit was derivative from the corporation’s liability, the equitable equivalent of the right to follow the assets at law — after judgment and execution nulla bona. It insisted that section 280 (a) (1), 26 USCA § 1069, applied only to the 'direct liabilities of transferees to pay the tax, and therefore affected only those for the first time created by the Act of 1926. This the court answered by holding that such a suit, in spite of its ancillary character, was to “collect the tax.”
I cannot think it a material difference that no judgment and 'execution had there gone against the corporation. Normally, these are conditions precedent to such a suit; they may be omitted only when they would be patently futile. But, when they are, the suit still remains one to subject voluntary transferees to the transferrer’s obligations; the procedural prerequisites do not change the nature of'the remedy. Hence I think that the suit at bar is one to collect a tax, if <a suit without judgment is such. While of course the Act of 1926 does not apply here, there were'limitations, indeed narrower limitations, in the earlier acts, with which eoncededly the Treasury has not here complied. These barred this suit as much as they would have barred a suit brought without judgment and execution.
While, perhaps, it should not be conclusive, a consequence of my 'brothers’ ruling seems to me worth notice. If they are right, it is always enough to toll the statute for'the Treasury to sue the corporation or other transferrer in season. Thereafter xt may at its leisure bring suit against the transferees, though it would be barred if it sued them'directly. The effect of the distinction we are making is to put it into the hands of the Treasury, by eschewing the short cut, indefinitely to extend the period of limitation. I cannot think that this is all that the Supreme Court meant in U. S. v. Updike, supra.