dissenting.
A deep and abiding conviction that the Court today departs from the plain direction of Congress expressed in 28 U. S. C. § 1346 (a), defeats its beneficent purpose, and repudiates many soundly reasoned opinions of the federal courts on the question presented, compels me to express and explain my disagreement in detail.
In his income tax return for the year 1950, petitioner deducted in full, as ordinary in character, the losses he had suffered in commodity transactions in that year, but the Commissioner viewed those losses as capital in *179character and proposed, by his 90-day letter, the assessment of a deficiency in the amount of $27,251.13, plus interest. Petitioner did not petition the Tax Court for a redetermination of the proposed deficiency and the Commissioner assessed it on March 27, 1953. In April and June 1953, petitioner paid to the Commissioner a total of $5,058.54 upon the assessment and timely thereafter filed a claim' for refund of that sum. The claim was rejected on July 13, 1955, and, on August 3, 1956, petitioner brought this action against the United States in the District Court for Wyoming to recover the amount paid, alleging, inter alia, that said sum “has been illegally and unlawfully collected” from him, and he prayed judgment therefor with interest from the date of payment.
At the trial, the Government prevailed on the merits, 142 F. Supp. 602, but the Court of Appeals, without reaching the merits, remanded with directions to dismiss, holding that because the petitioner had not paid the entire amount of the assessment the District Court had no jurisdiction of the action. 246 F. 2d 929. We granted cer-tiorari and, after hearing, affirmed the judgment of the Court of Appeals. 357 U. S. 63. On June 22, 1959, we granted a petition for rehearing and restored the case to the docket. 360 U. S. 922. It has since been rebriefed, reargued and again submitted.
The case is now presented in a very different posture than before, as certain vital contentions that were previously made are now conceded to have been erroneous.
The question presented is whether a Federal District Court has jurisdiction of an action by a taxpayer against the United States to recover payments made to the Commissioner upon, but which discharged less than the entire amount of, an illegal assessment.
The answer to that question depends upon whether the United States has waived its sovereign immunity to, and *180has consented to, such a suit in a District Court. The applicable jurisdictional statute is 28 U. S. C. § 1346 (a). It provides:
“The district courts shall have original jurisdiction, concurrent with the Court of Claims, of:
“(1) Any civil action against the United States for the recovery of any internal-revenue tax alleged to have been erroneously or illegally assessed or collected, or any penalty claimed to have been collected without authority or any sum alleged to have been excessive or in any manner wrongfully collected under the internal-revenue laws.” (Emphasis added.)
In its former opinion the Court recognized that the words of the statute might “be termed a clear authorization to sue for the refund of 'any sum/ ” 357 U. S., at 65, but it concluded that Congress had left room in the statute for an implication that the waiver of immunity and grant of jurisdiction applied only to refund suits in which the entire amounts of assessments had been paid. Advocating the existence of that implication, the Government contended and urged that, from the time of the decision in Cheatham v. United States, 92 U. S. 85, in 1875 until the decision in Coates v. United States, 111 F. 2d 609 (C. A. 2d Cir.), in 1940, there was an unquestioned understanding and uniform practice that full payment of an assessment was a condition upon the right to sue for refund; and, finding what it then accepted as adequate support for that contention, the Court was persuaded that, since no subsequent statute had purported to change it, such unquestioned understanding so long and uniformly applied was still effective.
Support for that asserted unquestioned understanding and uniform practice was principally derived from two sources. First, statements in Cheatham v. United States, supra, were thought to have enunciated a full-payment *181doctrine 1 which seemed never to have been directly questioned. Second, the contention was accepted that “there does not appear to be a single case before 1940 in which a taxpayer attempted a suit for refund of income taxes without paying the full amount the Government alleged to be due.” 357 U. S., at 69.
The Government now concedes that the second contention was erroneous. There were, for example, two cases in this Court (Cook v. Tait, 265 U. S. 47 (1924); Bowers v. Kerbaugh-Empire Co., 271 U. S. 170 (1926)) in which taxpayers had sued for refunds after having paid only *182portions (in one case $298.34 of an assessment of $1,193.38, in the other $5,198.77 of an assessment of $10,320.14) of the amounts assessed against them. It was not contended by the Government in either of those cases that there was any want of jurisdiction, and this Court considered and decided both upon the merits.2 Petitioner has now cited many other tax refund cases, decided in the lower courts prior to 1940, in which taxpayers had paid, and sued to recover, less than the whole of assessments alleged to have been illegal, and in which cases the Government did not question jurisdiction.3 The Government concedes that in *183at least two of these (Thomas v. United States, 85 Ct. Cl. 313, 18 F. Supp. 942 (1937); Tsivoglou v. United States, 31 F. 2d 706 (C. A. 1st Cir. 1929), affirming 27 F. 2d 564 (D. C. Mass. 1928)) taxpayers had paid, and sued to *184recover, less than the whole of deficiency assessments and that the Government did not question jurisdiction in either of them. Prior to the decision in the present case there were two decisions in the Courts of Appeals that fully treated with the precise question here presented. Both held that District Courts have jurisdiction over actions to recover partial payments upon assessments alleged to have been illegal. Coates v. United States, 111 F. 2d 609 (C. A. 2d Cir. 1940); Bushmiaer v. United States, 230 F. 2d 146 (C. A. 8th Cir. 1956).4 Certainly, the cited cases and the Government’s concession preclude *185a conclusion that there ever was an unquestioned understanding and uniform practice that full payment of an assessed deficiency was a condition upon the jurisdiction of a District Court to entertain a suit for refund.
In the light of the foregoing, it is clear that nothing in Cheatham v. United States, supra, fairly may be said to hold that full payment of an illegally assessed deficiency is a condition upon the jurisdiction of a District Court to entertain a suit for refund. No such issue was involved in that case. There the assessment had been fully paid, and the only issue was whether a proper claim for refund was a condition precedent to the maintenance of a suit to recover the amount alleged to have been illegally collected. Not only were the statements there made respecting “payment of the tax” pure dictum, but even the language there used did not embrace, and certainly was not directed to, the question whether full payment of an assessment is a condition upon the jurisdiction of a District Court to entertain a suit for refund.
I pass, then, to an examination of the history of the present jurisdictional provision, § 1346 (a), and the scheme of the present tax law to determine whether there is any real support for the Government’s contention that a proper reading of the language of § 1346 (a) requires an implied qualification to its obvious self-explanatory meaning, so that full payment of an assessment, alleged to have been illegal, is made a condition upon the jurisdiction of a District Court to entertain a suit for refund.
Judicial proceedings for refund of United States taxes in federal courts originated, without express statutory authority, by suits against Collectors (now District Directors), before the United States had made itself amenable to suit. Elliott v. Swartwout, 10 Pet. 137 (1836), recognized the existence of a right of action against a Collector of Customs for refund of duties *186illegally assessed and paid under protest.5 The doctrine of the action, based upon the common-law count of assumpsit for money had and received, was thus formulated : “ [ W] here money is illegally demanded and received by an agent, he cannot exonerate himself from personal responsibility by paying it over to his principal; if he has had notice not to pay it over.” 10 Pet., at 158. As a result of that case, Collectors of Customs who collected monies, paid under protest, resorted to the practice of withholding such amounts from the Government as indemnity against loss should a refund suit against them be successful. See Plumb, Tax Refund Suits Against Collectors of Internal Revenue, 60 Harv. L. Rev. 685, 688-689. That practice led to abuses and facilitated peculation under the guise of self-protection. Because of the wholesale frauds of Swartwout, the New York Collector (see Swartwout, 18 Dictionary of American Biography (1936), 238-239), Congress, in 1839, expressly prohibited such withholdings by Customs Collectors pending the possibility, or the result, of litigation against them. Act of Mar. 3, 1839, c. 82, § 2, 5 Stat. 348. Six years later, in 1845, this Court held that this Act, by reducing the Collector to “the mere bearer of those sums [duties] to the Treasury,” terminated the right of action against the Collector for refund, for, being deprived of the right to withhold payment to his principal, he was no longer under an implied promise to refund illegally collected duties to the taxpayer. Cary v. Curtis, 3 How. 236, 241 (1845).
This created the intolerable condition of denying to taxpayers any remedy whatever in the District Courts to recover amounts illegally assessed and collected, and— doubtless also influenced by the vigorous dissents of Mr. *187Justice Story and Mr. Justice McLean in that case— induced Congress to pass the Act of Feb. 26, 1845, c. 22, 5 Stat. 727,6 which was the first statute expressly giving taxpayers the right to sue for refund of taxes illegally collected. That Act, in substance, provided that nothing contained in the Act of Mar. 3, 1839 (c. 82, § 2, 5 Stat. 348), should be construed to take away or impair the right of any person who had paid duties under protest to any Collector of Customs, which were not lawfully “payable in part or in whole,” to maintain an action at law against the Collector to recover such amounts. It is evident that Congress, by that statute, was merely concerned to reverse the consequences of Cary v. Curtis, supra, and to restore the right of action against Collectors which had originally been sustained in Elliott v. Swartwout, supra. Neither the terms of that statute nor such knowledge as is available of its history7 reveals any limiting purpose except that *188the protest be made in writing before or at the time of the payment.
While that statute, the Act of Feb. 26, 1845, referred only to refunds of customs duties, this Court held in City of Philadelphia v. The Collector, 5 Wall. 720, 730-733 (1866), that taxpayers had the same right of action against Collectors to recover illegally collected internal revenue taxes.8
The United States was first made directly suable in District Courts for tax refunds by the Act of Mar. 3, 1887, c. 359, 24 Stat. 505, commonly known as the Tucker Act, which conferred jurisdiction on the District Courts over “All claims [against the United States, not exceeding $1,000] founded upon the Constitution of the United States or any law of Congress, ... or upon any contract, expressed or implied, with the Government of the United States, or for damages, liquidated or unliquidated, in cases not sounding in tort, in respect of which claims the party would be entitled to redress against the United States either in a court of law, equity, or admiralty if the United States were suable.” This jurisdictional grant *189was held, in United States v. Emery, Bird, Thayer Realty Co., 237 U. S. 28 (1915), to have included jurisdiction over suits for tax refunds, as claims “founded upon” the internal revenue laws. The general language of that Act, the Tucker Act, was most evidently not intended to, and did not, impose any new conditions upon the pre-existing right to sue (the Collector) for the refund of taxes illegally collected, save for a monetary limit of $1,000, which was increased to $10,000 in 1911.9
The gist of § 1346 (a),10 with which we are now concerned, first appeared in the jurisdictional statute in 1921, as part of the Revenue Act of 1921, c. 136, § 1310 (c), 42 Stat. 311. The reason for its appearance is entirely unrelated to the question whether full payment of an assessment is a condition precedent to a suit for refund. Under the Tucker Act, as it stood in 1921, the United States could not be sued in a District Court for a tax refund of more than $10,000. Taxpayers with larger claims could pursue either their old remedy — which continued to be available and is today — against the Collector in the District Courts or their remedy against the United States in the Court of Claims. But, the right of suit against the Collector was impaired in 1921 by the decision in Smietanka v. Indiana Steel Co., 257 U. S. 1 (1921). It held that such actions against the Collector were personal in character and not maintainable against his successor in office. Hence, if . the Collector had died or ceased to be *190in office, a taxpayer with a refund claim of more than $10,000 had no remedy in a District Court. The portion of the Revenue Act of 1921 that is now embodied in § 1346 (a) was an amendment of the Tucker Act and was designed to preserve to taxpayers with claims of more than $10,000 a District Court remedy, even where the Collector had died or was out of office, by suit against the United States. The legislative history makes this purpose plain.11
The relevant portion of the 1921 Amendment to the Tucker Act — part of the Revenue Act of 1921 (c. 136, § 1310 (c), 42 Stat. 311)12 — was apparently taken from a provision in Revised Statutes § 3226 (1875) that “No suit 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 penalty claimed to have been collected without authority, or of any sum alleged to have been excessive or in any manner wrongfully collected, until appeal shall have been duly made to the Commissioner of the Internal Revenue.” 13 In that context it is clear that the language “any tax,” “any penalty” or “any sum” had no reference to what payments were required to precede a suit for refund. Quite evidently, its function was only to describe, in broadest terms, *191the claims for refund which were required to be submitted to the Commissioner before suit might be brought thereon. What reasonable basis is there for ascribing to Congress, by reason of its insertion of this language into the Tucker Act, an intent to require full payment of an illegal assessment as a condition upon the jurisdiction of a District Court to entertain a suit for refund? The change was a jurisdictional one in a jurisdictional statute, and the language, it is almost necessary to assume, was chosen because, in another statute, it referred to all of the actions which could be brought for refund of internal revenue taxes.
The Government heavily relies on statements made in Congress pertaining to the establishment in 1924 of the Board of Tax Appeals (since 1942 designated the Tax Court) and its reorganization in 1926. It asserts that these statements demonstrate a congressional understanding that the broad language in § 1346 (a) excludes jurisdiction of District Courts to entertain suits to recover only partial payments of assessments alleged to be illegal. It is true that those statements, some of. which are reproduced in the margin,14 are consistent with the Govern*192ment’s interpretation of that section. But, as with the statements in Cheatham v. United States, supra, they are not directed to the question we have here and are too imprecise for the drawing of such a far-reaching inference, involving, as it does, the interpolation of a drastic quali*193fication into the otherwise plain, clear and unlimited provisions of the statute.
The Tax Court was created to alleviate hardships occasioned by the fact that the collection of assessments, however illegal, could not be enjoined. And the Government argues that the hardships which motivated Congress to establish the Tax Court would not have existed if a taxpayer could, as the petitioner did here, pay only part of a deficiency assessment and then, by way of a suit for refund, litigate the legality of the assessment in a District Court. But that procedure would not then, nor today, afford any sure relief to taxpayers from the hardships which troubled Congress in 1924, for it is undisputed that the institution of a suit for refund of a partial payment of an assessment does not stay the Commissioner’s power of collection 15 by distraint or otherwise, and a taxpayer with the property or means to pay the balance of the assessment cannot avoid its payment, except through the Commissioner’s acquiescence and failure to exercise his power of distraint.16
The Government argues, with some force, that our tax legislation as a whole contemplates the Tax Court as the forum for adjudication of deficiencies, and the District Courts and Court of Claims as the forums for adjudication of refund suits. This, in general, is true, and it is also true that to hold that full payment of assessments *194is not a condition upon the jurisdiction of District Courts to entertain suits for refund is to sanction what may be called a “hybrid” remedy in the District Courts, for the suit of the taxpayer who has paid only part of an assessment and has sued for refund will, under application of the principles of collateral estoppel, determine the legality of the remainder of the deficiency as well as his right to refund of the amount paid. But such dual determinations are possible under the present law 17 and it is difficult to conceive how they may create sufficient disharmony to justify such a strained interpretation of the plain words of § 1346 (a) as the Government’s contention would require.18
Nor is the argument sound that to hold that full payment of an illegal assessment is not a condition upon the jurisdiction of District Courts to entertain suits for refund would unduly hamper the collection of taxes, by encouraging taxpayers to withhold payment of large portions of assessments while prosecuting litigation for the refund of the part already paid. Not only is it true that the institution of a suit for refund does not stay collection,19 but, since the creation of the Tax Court, any taxpayer has a method of withholding payment, immune *195from distraint,20 until the legality of the assessment is finally determined. Any delay in collection which might be caused by holding that full payment of an assessment is not a condition upon the jurisdiction of a District Court to entertain a suit for refund would be of the same order as the delay incident to adjudication by the Tax Court, and would not create so incongruous a result as to justify giving an otherwise clear and unlimited statute a strained and unnatural meaning.
Petitioner, on the other hand, suggests that if it be held that full payment of illegal assessments is a condition upon the jurisdiction of District Courts in refund suits, not only will the words of § 1346 (a) be disregarded, but great hardships upon taxpayers will result, and that such an intention should not lightly be implied. Where a taxpayer has paid, upon a normal or a “jeopardy” assessment, either voluntarily or under compulsion of distraint, a part only of an illegal assessment and is unable to pay the balance within the two-year period of limitations,21 he would be deprived of any means of establishing the invalidity of the assessment and of recovering the amount illegally collected from him, unless it be held, as it seems to me Congress plainly provided in § 1346 (a), that full payment is not a condition upon the jurisdiction of District Courts to entertain suits for refund.22 Likewise, tax*196payers who pay assessments in installments would be without remedy to recover early installments that were wrongfully collected should the period of limitations run before the last installment is paid.
No one has suggested that Congress could not constitutionally confer jurisdiction upon District Courts to entertain suits against the United States to recover sums *197wrongfully collected under, but which did not discharge the whole of, illegal assessments. Nor can it be denied that Congress has provided in § 1346 (a) that:
“The district courts shall have original jurisdiction . . . of . . . Any civil action against the United States for the recovery of . . . any sum alleged to have been excessive or in any manner wrongfully collected under the internal-revenue laws.” (Emphasis added.)
English words more clearly expressive of the grant of jurisdiction to Federal District Courts over such cases than those used by Congress do not readily occur to me.'
It must, therefore, be concluded that there is no sound reason for implying into § 1346 (a) a limitation that full payment of an illegal assessment is a condition upon the jurisdiction of a District Court to entertain a suit for refund. Inasmuch as no contradiction or absurdity is created by so doing, I think it is our duty to rely upon the words of § 1346 (a) rather than upon unarticulated implications or exceptions. Particularly is this so in dealing with legislation in an area such as internal revenue, where countless rules and exceptions are the subjects of frequent revisions and precise refinements.
By § 1346 (a) Congress expressed its purpose to waive sovereign immunity to suits, and to grant jurisdiction to District Courts over suits, to recover “any sum alleged to have been excessive or in any manner wrongfully collected under the internal-revenue laws.” Surely these words do not limit the waiver of immunity or the grant of jurisdiction to actions in which the entire amounts of illegal assessments have been paid. Even if the words “any internal-revenue tax” or “any penalty,” when read in isolation and most restrictively, could be thought to contemplate only the entire amount of an illegal assess*198ment, the concluding phrase — “or any sum alleged to have been excessive or in any manner wrongfully collected” — leaves no room or basis for any such construction of the statute as a whole. Judged by its text and its history in relation to other provisions of the tax laws, as must be done, I cannot doubt that Congress plainly expressed its intention to waive sovereign immunity to suits, and to grant jurisdiction to District Courts over suits, against the United States to recover “any sum” alleged to have been wrongfully collected. Petitioner's complaint here alleged that the $5,058.54 which he had paid to the Commissioner upon the questioned assessment “has been illegally and unlawfully collected” from him. The complaint, therefore, stated a cause of action within the jurisdiction of the District Court.
But the Court does not so see it. The majority now hold, despite the statute, that full payment of an illegal assessment is a condition upon the jurisdiction of a District Court to entertain a suit for refund. It, therefore, seems appropriate, in order eventually to avoid the harsh injustice of permitting the Government unlawfully to collect and retain taxes that are not owing, to express the hope that Congress will try again.
The Government now seeks to distinguish these two cases because they arose under the Revenue Act of 1921, Act of Nov. 23, 1921, c. 136, 42 Stat. 227, and because § 250 (a) of which permitted the taxpayer, at his option, to pay the tax in four trimonthly installments, rather than all at once. The taxpayers in both Cook v. Tait and Bowers v. Kerbaugh-Empire Co. did choose to pay in installments, and the Government points to the fact that, at the time the suits were brought, all installments due had been paid, although the full assessment had not. The Government therefore would seem to take the position that the whole tax need not be paid, so long as the taxpayer, when he initiates the suit, has paid “all that the taxpayer was at that time legally obligated to pay, and all (in the absence of a so-called jeopardy assessment) that the Commissioner was at that time legally empowered to collect.” (It should be pointed out that in Cook v. Tait and Bowers v. Kerbaugh-Empire Co. installments fell due immediately after suit was begun, and before hearing or adjudication; these installments were not paid as they came due.) It seems almost unnecessary to say that the words of the jurisdictional statute simply will not support this'fine distinction urged by the Government; nor is there the least support for it (there is, if anything, contradiction) in the material the Government cites to establish an understanding of the full-payment requirement.
The lower courts’ decisions cited by petitioner, that were rendered prior to 1940, in which taxpayers had paid, and sued to recover, less than the whole of assessments alleged to have been illegal, and in which the Government did not question jurisdiction, are: Tsivoglou v. United States, 31 F. 2d 706 (C. A. 1st Cir. 1929); Heinemann Chemi*183cal Co. v. Heiner, 92 F. 2d 344 (C. A. 3d Cir. 1937); Thomas v. United States, 85 Ct. Cl. 313, 18 F. Supp. 942 (1937); Peerless Paper Box Mfg. Co. v. Routzahn, 22 F. 2d 459 (D. C. N. D. Ohio 1927); Welch v. Hassett, 15 F. Supp. 692 (D. C. Mass. 1936); McFadden v. United States, 20 F. Supp. 625 (D. C. E. D. Pa. 1937); Leavitt v. Hendricksen, 37-2 U. S. T. C., ¶ 9312 (D. C. W. D. Wash. 1937).
In justice to counsel for both parties it seems appropriate to observe — what every lawyer knows — that cases, such as these, in which there “lurked in the record” questions that were not raised or decided are not discoverable by any ordinary means of reference. Without doubt, this fact accounts for the failure of counsel to take account of or to cite, and of this Court to find, those cases on the first hearing.
Petitioner has cited a number of other cases, decided by the lower courts prior to and during 1940, that sought recovery of partial payments upon assessments, and in each of which the Government did challenge, but unsuccessfully, the jurisdiction of the courts, namely, Coates v. United States, 111 F. 2d 609 (C. A. 2d Cir. 1940); Camp v. United States, 44 F. 2d 126 (C. A. 4th Cir. 1930); Ohio Steel Foundry Co. v. United States, 69 Ct. Cl. 158, 38 F. 2d 144 (1930); Emery v. United States, 27 F. 2d 992 (D. C. W. D. Pa. 1928); Old Colony R. Co. v. United States, 27 F. 2d 994 (D. C. Mass. 1928).
Petitioner has also cited 22 similar cases, decided by the lower courts since 1940. In 17 of them (Kavanagh v. First National Bank, 139 F. 2d 309 (C. A. 6th Cir. 1943); Griffiths Dairy, Inc., v. Squire, 138 F. 2d 758 (C. A. 9th Cir. 1943); United States v. Pfister, 205 F. 2d 538 (C. A. 8th Cir. 1953); Gallagher v. Smith, 223 F. 2d 218 (C. A. 3d Cir. 1955); Perry v. Allen, 239 F. 2d 107 (C. A. 5th Cir. 1956); Auricchio v. United States, 49 F. Supp. 184 (D. C. E. D. N. Y. 1943); Professional Golf Co. v. Nashville Trust Co., 60 F. Supp. 398 (D. C. M. D. Tenn. 1945); Jack Little Foundation v. Jones, 102 F. Supp. 326 (D. C. W. D. Okla. 1951); Hogg v. Allen, 105 F. Supp. 12 (D. C. M. D. Ga. 1952); Snyder v. Westover, 107 *184F. Supp. 363 (D. C. S. D. Cal. 1952); Wheeler v. Holland, 120 F. Supp. 383 (D. C. N. D. Ga. 1954); Peters v. Smith, 123 F. Supp. 711 (D. C. E. D. Pa. 1954); Zukin v. Riddell, 55-2 U. S. T. C., ¶ 9688 (D. C. S. D. Cal. 1955); Lewis v. Scofield, 57-1 U. S. T. C., ¶ 9251 (D. C. W. D. Tex. 1956); McFarland v. United States, 57-2 U. S. T. C., ¶ 9733 (D. C. M. D. Tenn. 1957); Raymond v. United States, 58-1 U. S. T. C., f 9397 (D. C. E. D. Mich. 1958); Freeman v. United States, 58-1 U. S. T. C., ¶9309 (D. C. S. D. Cal. 1958)) the Government did not question the jurisdiction of the courts, and in the other five cases (Bushmiaer v. United States, 230 F. 2d 146 (C. A. 8th Cir. 1956); Sirian Lamp Co. v. Manning, 123 F. 2d 776 (C. A. 3d Cir. 1941); Jones v. Fox, 57-2 U. S. T. C., ¶ 9876 (D. C. Md. 1957); Hanchett v. Shaughnessy, 126 F. Supp. 769 (D. C. N. D. N. Y. 1954); Rogers v. United States, 155 F. Supp. 409 (D. C. E. D. N. Y. 1957)) the Government did challenge the jurisdiction of the courts, but prevailed upon the point only in the last-mentioned case.
Sirian Lamp Co. v. Manning, 123 F. 2d 776 (C. A. 3d Cir. 1941) was a suit against the Collector and, therefore, did not come under the jurisdictional provision here in issue, which is applicable only to suits against the United States. But it held expressly that a suit for refund may be maintained to recover a partial payment of an assessment. No one has suggested that the jurisdictional requirement of the amount of the assessed tax that must be paid as a prerequisite to a suit for refund is different when the suit is against the Collector, with regard to which suits there is no specific jurisdictional provision, rather than against the United States.
See also Bend v. Hoyt, 13 Pet. 263, 267 (1839). Elliott v. Swartwout seems to have been the first case in this country expressly to recognize the right.
The Act of Feb. 26, 1845, c. 22, 5 Stat. 727, in pertinent part, provides:
“[N]othing contained in [the Act of Mar. 3, 1839, c. 82, § 2] . . . shall take away, or be construed to take away or impair, the right of any person or persons who have paid or shall hereafter pay money, as and for duties, under protest, to any collector of the customs . . . which duties are not authorized or payable in part or in whole by law, to maintain any action at law against such collector ... to ascertain and try the legality and validity of such demand and payment of duties . . . ; nor shall any action be maintained against any collector, to recover the amount of duties so paid under protest, unless the said protest was made in writing, and signed by the claimant, at or before the payment of said duties, setting forth distinctly and specifically the grounds of objection to the payment thereof.”
The only statements with regard to the purpose of the bill in Congress which have been found are the remarks of Senators Huntington and Woodbury, Cong. Globe, 28th Cong., 2d Sess. 195 (1845). See also 5 Stat. 349, n. (a): "[Congress being in session when the decision of the court in the case of Carey v. Curtis, 3 Howard, 236, was made, the following act [the Act of Feb. 26, 1845] was passed.]”
The Court recognized that internal revenue collectors, like customs collectors, were required to pay daily into the Treasury all sums collected under the internal revenue laws. Act of Mar. 3, 1865, c. 78, § 3, 13 Stat. 483. In refusing to reach the same result as had been reached in Cary v. Curtis, without an express saving statute such as the Act of Feb. 26, 1845, the Court relied upon the provisions in the internal revenue laws that the Commissioner shall pay all judgments for refunds recovered against Collectors. Act of Mar. 3, 1863, c. 74, §31, 12 Stat. 729; Act of June 30, 1864, c. 173, § 44, 13 Stat. 239; Act of July 13, 1866, c. 184, § 9, 14 Stat. 101, 111. “Clear implication of the several provisions is, that a judgment against the collector in such a case [a refund suit] is in the nature of a recovery against the United States, and that the amount recovered is regarded as a proper charge against the revenue collected from that source,” City of Philadelphia v. The Collector, 5 Wall., at 733.
Act of Mar. 3, 1911, c. 231, §24, 36 Stat. 1093. The monetary limitation was entirely eliminated in 1954. Act of July 30, 1954, c. 648, § 1, 68 Stat. 589.
The gist of § 1346 (a) provides: “for the recovery of any internal-revenue tax alleged to have been erroneously or illegally assessed or collected, or any penalty claimed to have been collected without authority or any sum alleged to have been excessive or in any manner wrongfully collected under the internal-revenue laws.” 28 U. S. C. § 1346 (a).
See 61 Cong. Rec. 7506-7507 (1921); H. R. Conf. Rep. No. 486, 67th Cong., 1st Sess. 57 (1921).
See note 10.
This language was in turn preceded by § 19 of the Revenue Act of July 13, 1866, c. 184, 14 Stat. 152, which did not include any reference to “penalties” or “sums”: “[N]o suit shall be maintained in any court for the recovery of any tax alleged to have been erroneously or illegally assessed or collected, until appeal shall have been duly made to the commissioner of internal revenue . . . .” It is important to note that this was the “claim for refund” statute in effect at the time of, and that was applicable to, Cheatham v. United States, supra. Quite unlike § 1346 (a), it made no reference to “any sum.”
“The committee [on Ways and Means] recommends the establishment of a Board of Tax Appeals to which a taxpayer may appeal prior to the payment of an additional assessment of income, excess-profits, war-profits, or estate taxes. Although a taxpayer may, after payment of his tax, bring suit for the recovery thereof and thus secure a judicial determination on the questions involved, he can not, in view of section 3224 of the Revised Statutes, which prohibits suits to enjoin the collection of taxes, secure such a determination prior to the payment of the tax. The right of appeal after payment of the tax is an incomplete remedy, and does little to remove the hardship occasioned by an incorrect assessment. The payment of a large additional tax on income received several years previous and which may have, since its receipt, been either wiped out by subsequent losses, invested in nonliquid assets, or spent, sometimes forces taxpayers into bankruptcy, and often causes great financial hardship *192and sacrifice. These results are not remedied by permitting the taxpayer to sue for the recovery of the tax after this payment. He is entitled to an appeal and to a determination of his liability for the tax prior to its payment.” H. R. Rep. No. 179, 68th Cong., 1st Sess. 7 (1924).
“Now, it is true that under the present law it is possible to get a judicial review, but it is very slow and expensive. In order to get a judicial review under the law as it exists to-day a man must pay his tax and pay it under protest; then he must file a claim for refund; then the Government has six months within which to accept or reject it; then after that he must begin an action in the courts.” Remarks of Representative Young, 65 Cong. Rec. 2621 (1924).
“The practice, as I understand it, has been to require the taxpayer to pay in the amount of the increased assessment, and then to allow him to get it back if he can. In addition to this, distraints frequently have been issued seizing the property of the citizen, so that the man whose taxes may have been raised unjustly may find himself forced to raise a large sum of money at once or have his property seized.” Remarks of Senator Reed of Missouri, 65 Cong. Rec. 8109 (1924).
“One of the chief arguments presented in the reports of the committees of both Houses [upon the creation of the Board of Tax Appeals] was to relieve the taxpayer of the hardship of being forced to go out and pay his tax before he could have a judicial consideration of the problems involved in his case. The taxpayer who was faced with, say, $100,000 of additional tax, and who was forced to pay that money, very frequently had his credit destroyed, and sometimes he was forced into bankruptcy in order to meet that payment. It was a real hardship. The man who had already paid the tax had gone through the suffering, had filed his claim for refund, and had his remedy. He has the remedy that he had prior to the creation of the board.” Statement of Charles D. Hamel, first Chairman of the Board of Tax Appeals, Hearings before the House Committee on Ways and Means on the Revenue Revision, 1925, Oct. 19 to Nov. 3,. 1925, pp. 922, 923.
“Except as provided in sections 6212 (a) and (c), and 6213 (a) [giving a right to petition the Tax Court], no suit for the purpose of restraining the assessment or collection of any tax shall be maintained in any court.” Int. Rev. Code, 1954, § 7421. Such a provision has been in the law since the Act of Mar. 2, 1867, c. 169, § 10, 14 Stat. 475.
Indeed there does not seem to be any way of restraining the Commissioner from collecting the remainder of a deficiency even after the taxpayer who has paid part has won a suit for refund, the Commissioner thus forcing the taxpayer to bring another action for refund.
See §§ 7422 (e) and 6512 of the Internal Revenue Code of 1954 giving, respectively, the District Courts and the Tax Court jurisdiction over suits involving both deficiencies and claims for refund.
The Government suggests that if this Court permits the petitioner to maintain his action for refund it will, as a consequence, sanction the practice of a taxpayer making only “token payment,” and then, by a suit for refund, adjudicating the legality of the entire assessment. We are not here concerned with such a totally different question. Petitioner’s payment of $5,058.54 on an assessment of $27,251.13 certainly was not a “token payment”; nor could the suit to recover the amount- paid be said to be one for a declaratory judgment — not permitted “with respect to Federal taxes" — under 28 U. S. C. §2201.
See note 15.
Except for the provision made for a “jeopardy assessment.” Int. Rev. Code, 1954, § 6861.
See Int. Rev. Code, 1954, §§6511, 6532, 26 U. S. C. §§6511, 6532.
The grossly unfair and, to me, shockingly inequitable result of today’s holding may be laid bare by assuming a commonplace set of facts: Two brothers, doing business as partners — one having a 60% and the other a 40% interest in the partnership — failed in their business which was then liquidated in bankruptcy. Thereafter, based upon the partnership’s transactions, the Commissioner proposed deficiency assessments in income taxes — one against the major partner of 16,000 and another against the minor one of $4,000. Be*196ing without funds to employ counsel to prepare, file in Washington, and prosecute a petition for redetermination in the Tax Court, none was filed by either of the taxpayers, and the Commissioner made the assessments as proposed. One year later, their father died intestate, and thereupon the family homestead vested equally in his two sons (the taxpayers) under the State’s laws of descent. The tax liens were, of course, instantly impressed upon their respective interests, and, under warrants of distraint, the Commissioner sold the homestead. It brought a total of $8,500 ($4,250 for the interest of each of the taxpayers). This, of course, satisfied the assessment and accrued interest against the minor partner, but left unpaid about $2,000 of the assessment and accrued interest against the major partner. Both filed claims for refund, which were denied. The taxpayers then filed separate suits, presenting identical issues, in the same Federal District Court to recover the taxes and interest thus collected by the Commissioner. The cases were consolidated for trial. The Court found that the assessments were illegal and the taxes wrongfully collected. The proceeds of the sale of the minor taxpayer’s interest being sufficient to discharge the illegal assessment and accrued interest against him, the court rendered judgment in his favor for the sum thus wrongfully collected. But, inasmuch as the proceeds of the sale were not sufficient to discharge the illegal assessment against the major partner, and he was financially unable to pay the balance of it, the Court held that it lacked jurisdiction to allow his recovery of the $4,250 thus found to have been wrongfully collected from him under the internal revenue laws. Is this fair? Is it not shocking? More to the point, is not that result plainly proscribed by Congress’ words in § 1346 (a) that: ‘‘The district courts shall have original jurisdiction ... of .. . Any civil action against the United States for the recovery of .. . any sum alleged to have been excessive or in any manner wrongfully collected under the internal-revenue laws”? (Emphasis added.)