is, in the absence of any controlling provision of law, absolutely
conclusive as to the existence of those facts. (Allen v. Blunt,
Fed. Cas., No. 215; 3 Story, C. C., 745; cited with approval in
U. S. v. Wright, 11 Wall., 648.)

An allowance by the commissioner under this section of a
claim for refund of taxes erroneously collected is conclusive as
to the facts upon which the allowance is made, but not as to
questions of law arising therein. (Decision by Compt. Tracewell,
Sept. 21, 1899; VI Comp. Dec., 259.)

Judgments against collectors.-Under section 3220, the commissioner is authorized to pay to the plaintiff the amount of a judgment recovered against a collector of internal revenue for damages for a seizure of property for an alleged violation of the internal-revenue laws, and is not restricted to the payment of such amount to the collector. Judgment may be paid without certificate of probable cause. (United States v. Frerichs, 124 U. S., 315; 34 Int. Rev. Rec., 39.)

Accounts for judgments against collectors, appropriation necessary for payment. (VII Comp. Dec. 471.)

A judgment against a collector may be paid to the claimant or to the collector. (34 Int. Rev. Rec., 39.)

Regulation relative to transmitting claims for refund to Secretary. (Dupasseur v. United States, 19 Ct. Cls., 1.)

As to suits to enforce allowances. (Boehm v. United States, 21 Ct. Cls., 290.)

Various acts of Congress relative to refund commented upon. (White v. Arthur, 10 Fed. Rep., 80.)

Instructions relative to the preparation of claims. (Reg. No. 14, revised.)

Circular No. 174, dated October 30, 1877, relative to the taking of additional testimony in support of claims for abatement or refund of taxes.

The filing of a claim for the abatement of a tax alleged to have been erroneously assessed does not operate as a suspension of the collection of the tax. (Regulations No. 14, revised, p. 16.)

Attorneys duly registered in the Treasury Department, and filing powers of attorney, will be recognized in the prosecution of refunding claims. (T. D. 159.)

Refunding tax on contingent beneficial interests under section 3, act of June 27, 1902. "An act to provide for refunding taxes paid upon legacies and bequests for uses of a religious, charitable, or educational character, for the encouragement of art, and so forth. See Department Circular No. 86 (Int. Rev. No. 630) as modified by the opinion of the Attorney General of August 1, 1902. (T. D. 570 and T. D. 595.)

accidentally de

SEC. 3221 [as amended by sec. 6, act of Mar. 1, 1879 Taxes on spirits (20 Stat., 327).] The Secretary of the Treasury, upon the stroyed. production to him of satisfactory proof of the actual destruction by accidental fire or other casualty, and without any fraud, collusion, or negligence of the owner thereof, of any distilled spirits, while the same remained in the custody of any officer of internal revenue in any distillery warehouse, or bonded warehouse of the United States and before the tax thereon has been paid, may abate the amount of internal taxes accruing thereon, and may cancel any warehouse bond, or enter satisfaction thereon, in whole or in part, as the case may be. And if such taxes have been collected since the destruction of said spirits, the said Secretary shall refund the same to the owners thereof out of any moneys in the Treasury not otherwise appropriated. And when any distilled spirits are hereafter destroyed by accidental fire or other casualty, without any fraud, collusion, or negligence of the owner

thereof, after the time when the same should have been drawn off by the gauger and placed in the distillery warehouse provided by law, no tax shall be collected on such spirits so destroyed, or if collected, it shall be refunded upon the production of satisfactory proof that the spirits were destroyed as herein specified.

This section provides allowance for loss by accidental fire or other unavoidable accident when the manufacture of spirits has been completed and they are destroyed before being drawn off and carried into the distillery warehouse and when the whisky is destroyed in the distillery warehouse.

Section 8, act of May 28, 1880 (sec. 3309a, p. 204), releases the distiller from the payment of tax upon spirits destroyed by accident while in the process of manufacture.

If the spirits are removed from a distillery warehouse to a manufacturer's warehouse, and are lost in the course of such removal, section 15, of the act of May 28, 1880, provides for remission of the tax. (Sec. 3433b, p. 336).

A similar provision is made where spirits are removed from a distillery warehouse for export. (Act Dec. 20, 1879, sec. 3330b, p. 223.)

(Greenbrier Distillery Co. v. Johnson, collector, et al., 88 Fed. Rep., 638.)

This section applicable to brandy stored in special bonded warehouses. (Sec. 5, act Mar. 3, 1877, p. 193.)

Secretary Manning's construction of the law relative to abatement of tax on spirits, said to have been lost from packages in warehouse. (31 Int. Rev. Rec., 189.)

Allowance for loss in warehouse. (Circ. No. 625; sec. 3294 a p. 185, and sec. 3294b, p. 187.)

Leakage not casualty. (Revised ruling of the department May 25, 1894, giving historical review of the laws; 40 Int. Rev. Rec., 173.)

The collapse of a barrel filled with whisky from the pressure of other barrels superimposed upon it is not a casualty within the meaning of the law. (Letter from Secretary of the Treasury to Commissioner Internal Revenue, July 24, 1894; 40 Int. Rev. Rec., 237.)

"Casualty" means. an accident; an event not to be foreseen or guarded against. Excessive and unusual summer heat is not a casualty, neither are undiscovered worm holes in whisky barrels a casualty within the meaning of this section. (Crystal Springs Distilling Co. v. Cox, collector, circuit court Kentucky, 1891; 47 Fed. Rep., 693; 37 Int. Rev. Rec., 328.) Decision affirmed, circuit court of appeals, 1892. (49 Fed. Rep., 555.)

Unavoidable casualty signifies events or accidents which human prudence, foresight, and sagacity can not prevent. (Wells v. Castees, 3 Gray, 325.)

Proof required in cases of destruction of distilled spirits by incendiaries. (43 Int. Rev. Rec., 285.)

Denial of claim for refund of tax on spirits alleged to have been destroyed by incendiary fire while in warehouse; insufficient evidence. (Letter from Secretary of the Treasury, Oct. 15, 1895; 42 Int. Rev. Rec., 49.)

Where spirits are withdrawn from warehouse tax paid and stamped, and afterwards destroyed by accident, the tax can not be refunded. (T. D. 18996, 1898.)

No provision authorizing relief when spirits are stolen from warehouse. (T. D. 19520, 1898.)

Distilled spirits seized by an internal-revenue officer and lost by his negligence, not lost through casualty, within section 3221. (U. S. v. Sisk (C. C. A.); 176 Fed. Rep., 885.)

Can abate the tax on spirits which have been in bonded warehouse beyond bonded period. (18 Op. Atty. Gen., 379; 32 Int. Rev. Rec., 94.)

The destruction of spirits stored in distillery warehouses by fire while in the warehouse constituted a “removal." (48 Fed. Rep., 714, reversed; United States v. Peace et al., 53 Fed. Rep., 999.) See Insurance Companies v. Thompson (95 U. S. (5 Otto), 547).

If accounting officers refuse to allow a claim after the Secretary's decision in its favor, claimant can recover in Court of Claims. (Hoffheimer Bros. v. United States, 20 Ct. Cls., 371.)

Liability of obligors on warehousing bonds to pay the tax on spirits destroyed in a distillery warehouse can be relieved only in the manner prescribed by the statute. (Farrell v. United States, 8 Biss., 259; 99 U. S. (9 Otto), 221; 25 Int. Rev. Rec., 83.)

The statute (sec. 3221) contemplates that the burden of proof shall be upon the applicant. (Opinion of Solicitor of the Treasury. Letter to Secretary of the Treasury of Oct. 21, 1885, in re claim of John G. Roach.)

A revocation of an order for abatement under section 3221, Revised Statutes, does not restore the previous liability of the obligors on the warehousing bond to pay the tax on the spirits claimed to have been destroyed. (United States v. Alexander et al., 110 U. S., 325.)

Regulations and instructions governing the abatement of taxes on spirits destroyed by fire, or other casualty. Regulations, No. 7, revised, and No. 14, revised.

Spirits destroyed by fire. (Freeman v. U. S., 157 Fed. Rep., 195.)

fect of preceding

SEC. 3222. The preceding section shall take effect in all, Retroactive efcases of loss or destruction of distilled spirits as aforesaid section. which have occurred since January one, eighteen hundred and sixty-eight.

This does not embrace the later addition made to section 3221 by act of Mar. 1, 1879, section 6, which by its own terms expressly relates only to spirits thereafter destroyed. (See italicized portion of sec. 3221, p. 117.)

Section 5 of the act of June 7, 1906 (34 Stat., 215), page 233, extends the provisions of sections 3221 and 3223, Revised Statutes, as amended, to grape brandy withdrawn for use in the fortification of sweet wines, and which, prior to such use, is accidentally destroyed by fire or other casualty while stored in the fortifying room on the winery premises.

lost spirits is in

SEC. 3223 [as amended by sec. 3, act of Mar. 1, 1879 (20, When tax on Stat., 327).] When the owners of distilled spirits in the demnified by incases provided for by the two preceding sections may be surance. indemnified against such tax by a valid claim of insurance for a sum greater than the actual value of the distilled spirits before and without the tax being paid, the tax shall not be remitted to the extent of such insurance.

The liability for tax on bonded spirits is an insurable interest (Insurance Company v. Thompson et al., 95 U. S. (5 Otto), 547.) An insurance policy upon whisky in bond, without reference to the Government tax, entitles the assured to include the tax in his recovery in case of loss, if the assured is liable for the tax. (Hedger v. Union Insurance Co., circuit court, district of Kentucky, 17 Fed. Rep., 498.)

In view of the foregoing statute and the decisions above cited, it is held, in cases where it is not expressly stipulated in the policies of insurance that the Government tax is not included in the insurance on the spirits, that the owner of the spirits is not entitled to any allowance, under section 3221, on so much of the tax as is equal to the valid insurance in excess of the actual value of spirits, exclusive of the tax.

strain assess

Suits to re- SEC. 3224. No suit for the purpose of restraining the ment or collec-assessment or collection of any tax shall be maintained tion of taxes. in any court.

Suits to recover

taxes collected

The constitutionality of a law can not be inquired into in an injunction suit. (The Delaware Railroad Co. v. Prettyman, collector, 17 Int. Rev. Rec., 99.)

Allegations in a bill that an assessment is irregular and void do not constitute any ground for an injunction to restrain the collection of the assessment. (Alkan v. Bean, collector, 23 Int. Rev. Rec., 351; 8 Biss., 83.)

A bill in equity will not lie to enjoin a collector of internal revenue from collecting a tax assessed by the commissioner, although the tax is alleged in the bill to have been illegally assessed. (Snyder v. Marks, 109 U. S., 189; 29 Int. Rev. Rec., 403; Moore v. Miller, 5 App. Cas., D. C., 413.)

A collector can not be restrained from collecting an assessment by injunction. (Pullan v. Kissinger, 2 Abb. (U. S.), 94; 11 Int. Rev. Rec., 197; Kensett v. Stivers, 27 Int. Rev. Rec., 1; 18 Blatch., 397; 10 Fed. Rep., 517; State Railroad Tax Cases, 92 U. S. (2 Otto), 613; Keely v. Sanders, 99 U. S., 443; Robbins v. Freeland, collector, 14 Int. Rev. Rec., 28; United States v. Hodson, 14 Int. Rev. Rec., 100; Roback v. Taylor (1866), 4 Int. Rev. Rec., 170.)

Purely injunction bills can not be maintained to restrain the collection of taxes upon the sole ground of their unconstitutionality. (Allen v. Pullman's Palace Car Co., 139 U. S., 658.)

A collector can not be enjoined from collecting a tax, but a suit to recover the money back when illegally collected is authorized. (Armour v. Roberts, 151 Fed. Rep., 846.)

It is contrary to every principle of equity jurisprudence that the collection of taxes on personal property should be stayed by injunction. (Nye v. Washburn, western district of Wis. 125 Fed. Rep., 818.)

The courts will not interfere by mandamus with the executive officers of the Government in the exercise of their ordinary official duties. (United States v. Black, Commissioner of Pensions, 128 U. S., 40.)

The court in this case followed an earlier decision of Decatur v. Paulding (14 Pet., 497), and made clear the distinction between the mere ministerial act of the executive officer, which may be controlled by the courts by mandamus, and an act in the performance of which an officer is vested with quasi-judicial discretion.

In matters which require an executive officer to exercise judgment or discretion, no rule will issue for a mandamus. (Carrick v. Lamar, 116 U. S., 423.)

When mandamus may issue. (Marbury v. Madison, 1 Cranch (U. S.), 137; United States v. Schurz, 102 U. S., 378.)

A bill for a mandatory injunction, requiring a collector to accept an export bond for spirits in a bonded warehouse after the bonded period has expired, and allow their withdrawal for export without payment of the tax, is in effect a bill to restrain the collection of taxes, which the court is forbidden to entertain. (Miles v. Johnson, collector, 59 Fed. Rep., 38; 40 Int. Rev. Rec., 10.)

A collector can not be restrained by injunction from making a seizure. (See under sec..3163, p. 75.)

SEC. 3225. When a second assessment is made in case under second as- of any list, statement, or return, which in the opinion of of proof as to the collector or deputy collector was false or fraudulent, fraud, etc. or contained any understatement or undervaluation, no

sessment, burden

taxes collected under such assessment shall be recovered by any suit, unless it is proved that the said list, state

ment, or return was not false nor fraudulent, and did not contain any understatement or undervaluation.

Bergdoll v. Pollock, (95 U. S., 337).

ery of taxes

lected.

col

SEC. 3226. No suit shall be maintained in any court for Suit for recovthe recovery of any internal tax alleged to have been wrongfully 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 Internal Revenue, according to the provisions of law in that regard, and the regulations of the Secretary of the Treasury established in pursuance thereof, and a decision of the Commissioner has been had therein: Provided, That if such decision is delayed more than six months from the date of such appeal, then the said suit may be brought, without first having a decision of the Commissioner at any time within the period limited in the next section.

In Hicks v. James' Administratrix, 48 Fed., 542, the plaintiff brought suit to recover certain taxes which it was claimed had been illegally exacted, and the question as to whether there had been a proper appeal made to the commissioner before the suit was instituted was raised, and the difference between an appeal taken under Forms 46 and 47 clearly shown. The case was later affirmed by the Supreme Court. (James' Administratrix v. Hicks, 110 U. S., 272; Hastings v. Herold, 184 Fed. Rep., 759.) In extending jurisdiction to United States courts by the act of March 3, 1887, the provisions of sections 3226 and 3227, Revised Statutes, were not abrogated. (Christie Street Commission Co. v. U. S., 126 Fed. Rep., 991; affirmed 129 Fed. Rep., 506.)

A suit against the collector for the recovery of taxes is in reality a suit against the United States upon an implied contract to pay that which has been unlawfully taken. (Armour v. Roberts (1907), 151 Fed. Rep., 846).

As the right to sue the United States through its collectors, to recover taxes alleged to have been illegally collected, is only a remedy given by statute, no such right exists unless the conditions prescribed by sections 3226, 3227 are strictly complied with. (Commissioners of the Sinking Fund of Louisville v. Buckner, 48 Fed. Rep., 533; Schmitt v. Trowbridge, collector, 24 Int. Rev. Rec., 381.)

The common-law right to sue a revenue officer for the recovery of taxes illegally exacted has been superseded by statute, and the remedy accorded thereby is deemed to be exclusive. (Snyder v. Marks, 109 U. S., 189; Schoenfeld v. Hendricks, 152 U. S., 691.) In the absence of a statutory rule to the contrary, the defense of a statute of limitations, which is not raised either in pleading, or on the trial, or before judgment, can not be availed of. (Retzer v. Wood, collector, 109 U. S., 185.)

A promise on the part of a collector of taxes to repay a tax illegally collected and paid only under protest can not be implied where statute makes it the duty of such officer to pay into the public Treasury without any deduction on account of claims of any description the gross amount that he received.

The prohibition that no suit shall be maintained in any court to recover a tax illegally assessed, except on certain conditions stated in the section, operates on all suits brought subsequently to the time fixed by the act for it to take effect, and on suits brought in State courts as well as in Federal. (The Collector v. Hubbard, 12 Wall., 1.)