Com missioner may transfer certain officers.

Certain powers

etc., under sec.

and shall aid in the prevention, detection, and punishment of any frauds in relation thereto. And it shall be the duty of every collector and of every internal-revenue agent to report to the Commissioner in writing any neglect of duty, incompetency, delinquency, or malfeasance in office of any internal-revenue officer or agent of which he may obtain knowledge, with a statement of all the facts in each case, and any evidence sustaining the

same.

The Commissioner may also transfer any inspector, gauger, storekeeper, or storekeeper and gauger, from one distillery, or other place of duty, or from one collection district, to another.

Duty of collector to collect taxes. (Sec. 3183, p. 94.)

Injunction will not lie against an executive officer to prevent his performance of acts directed by law. (Opinion of Solicitor of Treasury in the case of Sidenburg & Co., 27 Int. Rev. Rec., 47.)

Proper course to be pursued by a disbursing officer of the United States who is enjoined by a State court from paying money. (Op. Atty. Gen., 25 Int. Rev. Rec., 53; 16 Op. Atty. Gen., 257.)

Courts will not interfere by injunction with the exercise by the executive officers of duties requiring judgment or discretion. (Gaines v. Thompson, 7 Wall., 347; Litchfield v. Register and Receiver, 9 Wall., 575.)

As to injunctions against collectors. (See under sec. 3224, p. 120; also Haffin v. Mason, 15 Wall., 671; 17 Int. Rev. Rec., 118; 16 Op. Atty. Gen., 257; 25 Int. Rev. Rec., 53.)

Trespass will not lie against a collector for seizure unless the act was tortious or unauthorized. (Averill v. Smith, 17 Wall., 82; 17 Int. Rev. Rec., 171.)

Powers requiring judgment and discretion conferred upon executive officers must be exercised with reason. When clearly reasonable the courts will not interfere with officers acting under discretionary powers. When found to be clearly unreasonable such action will be held void. (Woolner v. Rennick, 170 Fed. Rep., 662, T. D., 1425.)

An officer or agent of the United States engaged in the performance of a duty arising under the laws and authority of the United States is not liable to a criminal prosecution in the courts of a State for acts done by him in his official capacity. (In re Waite, 81 Fed. Rep., 359.)

The collection by internal-revenue officers of a tax erroneously assessed does not constitute a tort. (Armour v. Roberts, 151 Fed. Rep., 846.)

Execution not to issue against officers in case of probable cause. (Sec. 989, p. 398, Appendix.)

under sec. 3163 [SEC. 3163a.] [Extract from legislative, executive, and missioner. Com-judicial appropriation act, approved Aug. 15, 1876 (19 Certain powers, Stat., 152).] The powers of transfer, and of 3163,conferred suspension, of officers conferred upon supervisors by secupon collectors. tion thirty-one hundred and sixty-three of the Revised Statutes, are hereby vested in the Commissioner of Internal Revenue; and all other powers conferred, and duties imposed, by said section upon supervisors, are hereby conferred and imposed upon collectors of internal revenue within their respective districts. In case of the Commissioner supervision [suspension] of a collector, under the power sion of collector. hereby conferred, the Commissioner of Internal Revenue

to report suspen

shall, as soon thereafter as practicable, report the case to the President through the Secretary of the Treasury for such action as he may deem proper. * * *

The powers and duties specified in section 3163, Revised Statutes, as that section was at the time of the above enactment of August 15, 1876, are as follows:

"SEC. 3163. Every supervisor, under the direction of the Commissioner, shall see that all laws and regulations relating to the collection of internal taxes, are faithfully executed and complied with; and shall aid in the prevention, detection, and punishment of any frauds in relation thereto, and examine into the efficiency and conduct of all officers of internal revenue; and for such purposes he shall have power to examine all persons, books, papers, accounts, and premises, to administer oaths, and to summon any person to produce books and papers, or to appear and testify under oath before him, and to compel a compliance with such summons in the same manner as collectors may do. He shall report in writing to the Commissioner of Internal Revenue any neglect of duty, incompetency, delinquency, or malfeasance in office of any internal-revenue officer of which he may obtain knowledge, with a statement of all the facts in each case, and any evidence sustaining the same. He may, by notice in writing, suspend from duty any inspector, gauger, or storekeeper, and he may suspend any collector for fraud, or gross neglect of duty, or abuse of power. In case of the suspension of any inspector, gauger, or storekeeper, he shall immediately notify the collector of the proper district and the Commissioner of Internal Revenue, and within three days thereafter report his action and his reasons therefor, in writing, to the Commissioner. In case of the suspension of any collector, he shall immediately report his action to the Commissioner, with his reasons therefor, in writing, and the Commissioner, in all cases of suspension, shall thereupon take such action as he may deem proper. Every supervisor may also transfer any inspector, gauger, or storekeeper from one distillery, or other place of duty, or from one collection district, to another."

Suspension of collector. (18 Op. Atty. Gen., 318.)

Charges against subordinate officers or employees by collectors or agents. (T. D., 56.)

The extent and limitation of the authority of supervisors to compel the production of books and papers under section 3163 were discussed in the decision rendered by Judge Treat, in the United States district court, district of Missouri, in the case wherein Frederick Becker refused to obey the order of Supervisor Meyer to produce certain books and papers, and wherein an attachment was asked by the supervisor to compel obedience to his subpoena. (21 Int. Rev. Rec., 243.)

Law not unconstitutional in giving these officers the right to examine books, etc. (Stanwood v. Green, 11 Int. Rev. Rec., 134.) The authority given to the supervisor to enter without warrant and examine the premises of parties was valid as a civil proceeding, and not in conflict with the fourth amendment to the Constitution, nor was his authority to compel parties to attend and produce books and testify, in conflict with the fifth amendment to the Constitution. (In re Meadow & Brothers (1869), 10 Int. Rev. Rec., 74. See also Perry v. Newsome, 10 Int. Rev. Rec., 20; Stanwood v. Fordyce, 13 id., 77.)

ors to report vio

SEC. 3164. It shall be the duty of every collector of in- Duty of collectternal revenue to report within ten days to the district lations of law to attorney of the district in which any fine, penalty, or for- district attorney. feiture may be incurred for the violation of any law of the United States relating to the revenue, a statement of all the facts and circumstances of the case within his knowledge, together with the names of the witnesses, and which

Revenue offi

cers who may ad

and take

dence.

evi

may come to his knowledge from time to time, stating the provisions of the law believed to be violated, and on which a reliance may be had for condemnation or conviction; and if any collector shall in any case fail to report to the proper district attorney as prescribed in this section, his right to any compensation, benefit, or allowance in such case shall be forfeited to the United States, and the same may, in the discretion of the Secretary of the Treasury, be awarded to such persons as may make complaint and prosecute the same to judgment or conviction.

Section 838, Revised Statutes, provides that it is the duty of the district attorney to whom any collector of internal revenue shall report any case in which any fine, penalty, or forfeiture has been incurred for violation of the internal-revenue law, to cause the proper proceedings to be commenced and prosecuted without delay, for the fines, penalties, and forfeitures provided, unless, upon inquiry and examination, he shall decide that such proceedings can not properly be sustained, or that the ends of public justice do not require that proceedings should be instituted; in which case he shall report the facts to the Commissioner of Internal Revenue for his direction. (Appendix, p. 401.)

Under the provisions of section 3460, Revised Statutes, page 363, when any property (except real estate) seized by the collector for violation of internal-revenue laws does not exceed $500 in value it should be proceeded against by the collector, instead of being reported to the district attorney, unless a bond for costs is given as provided. (See Regulations, No. 12, revised, p. 25; Reg. No. 2, revised, p. 46.)

Under existing law collectors receive no allowance from cases to be reported to United States attorneys.

Reports to United States attorneys of violations of the internalrevenue law should in all cases give sufficient data to enable them to form an opinion as to whether or not the public interests require prosecution. (T. D. 1597.)

Instructions to collectors and district attorneys relative to prosecution for violations of internal-revenue laws. (T. D. 1605.) United States attorneys instructed to furnish copies of their reports on Form 112 to the collectors of the districts in all cases where the violation of law was not reported by the collector. (T. D. 1443.)

Violations of law to be promptly reported. (T. D. 176; July 12, 1900.)

Course to be pursued by revenue agents and collectors in cases of technical violations of law, compromises, etc. (27 Int. Rev. Rec., 397.)

Circular letter to United States attorneys relative to unnecessary prosecutions. (T. D. 1336.)

Čases to be carefully examined before proceedings are instituted. (Regulations No. 12, p. 26.)

Duty of collectors to look after cases in suit. (T. D. 937.) Prosecution not commenced before indictment. (Virginia v. Paul, 148 U. S., 107.)

SEC. 3165 [as amended by sec. 2, act of Mar. 1, 1879 (20 minister oaths Stat., 329).] Every collector, deputy collector, and inspector is authorized to administer oaths and to take evidence touching any part of the administration of the internal-revenue laws with which he is charged, or where such oaths and evidence are authorized by law or regulation authorized by law to be taken.

See section 3162, page 75.

Inspectors appointed under the denatured-alcohol act not authorized to administer oaths. (T. D. 1163.)

Deputy collectors have authority to administer oaths to sureties on distiller's bonds. (U. S. v. Hardison, 135 Fed. Rep., (1905.) 419.)

SEC. 183. Any officer or clerk of any of the Departments lawfully detailed to investigate frauds, or attempts to defraud, on the Government, or any irregularity or misconduct of any officer or agent of the United States, shall have authority to administer an oath to any witness attending to testify or depose in the course of such investigation.

The act imposing excise tax on corporations, act of August 5, 1909, page 325, authorizes revenue agents in certain cases to administer oaths.

Revenue offi

SEC. 3166. Any officer of internal revenue may be spe- cers authorized cially authorized by the Commissioner of Internal Reve- to make seizures. nue to seize any property which may by law be subject to seizure, and for that purpose such officer shall have all the power conferred by law upon collectors; and such special authority shall be limited in respect of time, place, and kind and class of property, as the Commissioner may specify: Provided, That no collector shall be detailed or authorized to discharge any duty imposed by law upon any other collector.

Seizure may be made by any unofficial person, but at the peril
of responsibility in damages in case the seizure is not adopted
by the Government and the property is not condemned. (13
Op. Atty. Gen., 253.)

A seizure implies an actual caption of the thing seized. (17
Op. Atty. Gen., 82.)

As to seizure of stocks see Miller v. United States. (11 Wall.,
268.)

Where a lot of ale, within the brewery in which it was made, was seized under process emanating from a State court as a forfeiture to the State and is in the custody of the sheriff awaiting judgment of the court, possession of the sheriff can not be legally interfered with by internal-revenue or other officers of the United States. (15 Op. Atty. Gen., 370.)

See section 3453 in regard to seizures, page 359.

Revenue officers to cooperate with State officers in the suppression of certain violations of law. (T. D. 1327; Int. Rev. Circular No. 716.)

cers

disclosing

SEC. 3167 [as amended by sec. 34, act of Aug. 28, 1894 Revenue offi(28 Stat., 509).] That it shall be unlawful for any collector, operations of deputy collector, agent, clerk, or other officer or employé manufacturers, of the United States to divulge or to make known in any manner whatever not provided by law to any person the operations, style of work or apparatus of any manufacturer or producer visited by him in the discharge of his official duties, or the amount or source of income, profits, losses, expenditures, or any particular thereof, set forth or disclosed in any income return by any person or corporation, or to permit any income return or copy thereof or any book containing any abstract or particulars thereof, to be seen or examined by any person except as provided by law; and it shall be unlawful for any person to print or publish in any manner whatever not provided by law, any income return or any part thereof or the amount or source of income, profits, losses, or expenditures appearing in any income return; and any offense against the foregoing provision shall be a misdemeanor

be interested in

and be punished by a fine not exceeding one thousand dollars or by imprisonment not exceeding one year, or both, at the discretion of the court; and if the offender be an officer or employé of the United States he shall be dismissed from office and be incapable thereafter of holding any office under the Government.

This section applies to revenue agents. (Sec. 3152, p. 67.) Furnishing statistical information to private persons. (34 Int. Rev. Rec., 117.)

Circular letter of August 18, 1897; information from official records. (43 Int. Rev. Rec., 318.)

Regulations prohibiting the giving out by collectors of records in their offices, or copies thereof, for purposes not contemplated by the internal-revenue laws. (Regulations No. 12, revised, pp. 45, 46; T. D. 18847, Jan. 21, 1898.)

Circular No. 583 (T. D. 226); Circular No. 651 (T. D. 727). Circular No. 354 (36 Int. Rev. Rec., 397). Collectors may furnish for publication monthly statements of the aggregate receipts from sale of stamps for tobacco, snuff, cigars, and cigarettes, but any information that would disclose the business done by or the value of stamps issued to any individual manufacturer must be withheld. (T. D. 263.)

Copies of special tax returns can not be furnished for use in trial of persons indicted for violation of State laws. (T. D. 766.) Data from returns made by distiller not to be furnished for use of private litigants. (T. D. 224.)

Instructions as to giving testimony in State courts: Revenue officers are prohibited from testifying in cases not arising under the laws of the United States as to facts that come to their knowledge in their official capacity. (T. D. 1218. Aug. 21, 1907.)

Instructions to collector as to obeying subpoena and producing records. (34 Int. Rev. Rec., 261.)

A collector of internal revenue refusing to testify or furnish copies of official papers, acting under instructions from Department. (Decision of Judge Evans, United States district court, district of Kentucky, discharging the collector; in re David N. Comingore, collector (1899), 96 Fed. Rep., 552; T. D., No. 21584; Boske v. Comingore, 177 U. S., 459; T. D. 104; in re Lamberton, 124 Fed. Rep., 446; T. D. 689; Stegall v. Thurman, 175 Fed. Rep., 813, T. D. 1616.) See section 882, page 391. Collectors can send, in obedience to a subpoena duces tecum issued for the purpose of having in court certain documents or records, any clerk who can give the necessary testimony. (T.D. 1113.)

Officers not to SEC. 3168. Any internal-revenue officer who is or shall certain manufac- become interested, directly or indirectly, in the manufactures; penalty. ture of tobacco, snuff, or cigars, or in the production, rec1877 (19 Stat., 20), tification, or redistillation of distilled spirits, shall be discorrecting verbal missed from office; and every officer who becomes so

Act Feb. 27,

error.

interested in any such manufacture or production, rectification, or redistillation, or in the production of fermented liquors, shall be fined not less than five hundred dollars nor more than five thousand dollars.

See section 3152, page 67.

See sections 1788 and 1789, pages 412, as to prohibitions against officers in respect to certain kinds of business.

See section 244, page 436, as to certain business forbidden to clerks in Treasury Department.

Circular No. 456, May 5, 1896; Government officer not authorized to fill in or date blank requests of distillers for regauge.

Circular No. 456 should be construed as prohibiting internalrevenue officers from acting as agents for distillers in any capacity. (42 Int. Rev. Rec., 354.)