Crown Willamette Paper Co. v. McLaughlin

MATHEWS, Circuit Judge

(concurring).

This suit was brought under section 3226 of the Revised Statutes, as amended by section 1103 (a) of the Revenue Act of 1932, c. 209, 47 Stat. 286. 26 USCA § 156 (see 26 USCA §§ 1672-1673), which provides: “No suit or proceeding shall be maintained in any court for the recovery of any internal-revenue tax alleged to have been erroneously or illegally assessed or collected, * * * or of any sum alleged to have been excessive or in any manner wrongfully collected until a claim for refund or credit has been duly filed with the Commissioner [of Internal Revenue] .”

The claim for refund, which this section makes a prerequisite to suit, must state the ground on which the refund is claimed. United States v. Felt & Tarrant Mfg. Co., 283 U. S. 269, 272, 51 S. Ct. 376, 75 L. Ed. 1025. Suit cannot be maintained on any ground not stated in the claim for refund. Taber v. United States (C. C. A.) 59 F.(2d) 568, 571; Snead v. Elmore (C. C. A.) 59 F.(2d) 312, 314; Weagant v. Bowers (C. C. A.) 57 F.(2d) 679, 680; J. P. Stevens Engraving Co. v. United States (C. C. A.) 53 F.(2d) 1, 3; Lewis A. Crossett Co. v. United States (Ct. Cl.) 50 F. (2d) 292, 296; Red Wing Malting Co. v. Willcuts (C. C. A.) 15 F.(2d) 626, 634, 49 A. L. R. 459.

The complaint in this case shows that the claims for re fund filed by appellant stated, as their sole ground, that interest on appellant’s unpaid taxes should have been computed, not from the time the taxes became due, as provided in section 250 (e) of the Revenue Act of 1918, but only from the date of the enactment of the Revenue Act of 1926. I agree with Judge WILBUR that this ground is untenable. Under the authorities cited, appellant cannot recover on any other ground. It follows, therefore, that the complaint states no cause of action.

This would still be true, even though it were alleged in each count of the complaint that there was no notice or demand for payment of taxes and no bona fide claim for abatement. Those grounds were not mentioned in the claims for refund. It would have been futile, therefore, to allege them in the complaint. The invalidity of the complaint arises, not from the absence of those allegations, but from the fact, apparent on its face, that the claims for refund, on which the complaint is based, were themselves without any valid or sufficient basis.

Even if the complaint could be said to state a cause of action, still the judgment should be affirmed. Appellant offered no evidence, but relied on admissions in *666appellee’s answer. The answer did not admit, but expressly denied, that the taxes and interest referred to in the complaint were illegally assessed or collected. The burden of proof was on appellant. United States v. Anderson, 269 U. S. 422, 443, 46 S. Ct. 131, 70 L. Ed. 347; United States v. Mitchell, 271 U. S. 9, 12, 46 S. Ct. 418, 70 L. Ed. 799; Compania General de Tabacos de Filipinas v. Collector of Internal Revenue, 279 U. S. 306, 310, 49 S. Ct. 304, 73 L. Ed. 704; McLaughlin v. Pacific Lumber Co., 293 U. S. 351, 356, 55 S. Ct. 219, 79 L. Ed. 423. This burden appellant did not sustain or attempt to sustain.