lected, all penalties collected without authority, and all taxes that appear to be unjustly assessed or excessive in amount, or in any manner wrongfully collected; also to repay to any collector or deputy collector the full amount of such sums of money as may be recovered against him in any court, for any internal taxes collected by him, with the cost and expenses of suit; also all damages and costs recovered against any assessor, assistant assessor, collector, deputy collector, or inspector, in any suit brought against him by reason of anything done in the due performance of his official duty: Provided, That where a second assessment is made in case of a list, statement, or return which in the opinion of the collector or deputy collector was false or fraudulent, or contained any understatement or undervaluation, such assessment shall not be remitted, nor shall taxes collected under such assessment be refunded, or paid back, unless it is proved that said list, statement, or return was not false or fraudulent, and did not contain any understatement or undervaluation.

As to certificate of probable cause, where recovery is had against a collector, see Sec. 989 R. S., printed below:

SEC. 989. When a recovery is had in any suit or proceeding against a collector or other officer of the revenue for any act done by him, or for the recovery of any money exacted by or paid to him and by him paid into the treasury, in the performance of his official duty, and the court certifies that there was probable cause for the act done by the collector or other officer, or that he acted under the directions of the Secretary of the Treasury, or other proper officer of the government, no execution shall issue against such collector or other officer, but the amount so recovered shall, upon final judg ment, be provided for and paid out of the proper appropriation from the treasury.

See, also, Sec. 970 R. S.

In a claim for refunding taxes, or the value of stamps unnecessarily used, the allowance made by the commissioner, unless it is impeached in some appropriate form by the United States, is conclusive, and the comptroller has no right to refuse to pass his allowance. The court of claims has jurisdiction to enforce payment in such cases. Secs. 3220 and 3426. United States v. Kaufman, 6 Otto, 567.

Held that the court of claims has jurisdiction of a suit for the refunding of taxes where the claim has been made under Sec. 3220 R. S., and allowed by the Commissioner of Internal Revenue, and subsequently disallowed by the accounting officer of the treasury. Case of United States v. Kaufman, 96 U. S. 567, quoted and affirmed. United States v. Savings Bank, 14 Otto, 731.

In this case the collector (Coster) made an illegal seizure of property belonging to one Frerichs, and was sued for damages. Frerichs recovered a judgment for $10,130.31. The court refused to give Coster a certificate of probable cause. The question of this refusal was appealed to the Supreme Court as error, but the Supreme Court decided that the discretion of the district court in refusing certificate of probable cause was not reviewable in the supreme or circuit court. See United States v. Abattoir Place, 106 U. S. 160. The Commissioner of Internal Revenue, with the approval of the secretary, under the last clause of Sec. 3220 R. S., then decided to allow the claim of $10,130.31 to be paid to Frerichs upon the due entry of satisfaction of said judg ment. The First Comptroller disallowed the claim, for the reason that there was no certificate of probable cause issued, and not sufficient evidence that the seizure was justified. Frerichs then sued the United States in the court of claims, and that court gave judgment in his favor, holding that the proper party was entitled to recover the amount of the claim, and that, as between Frerichs and Coster, Frerichs was the proper party. It is stated in the opinion of the court of claims in this case that it has been the uniform practice of

the Commissioner of Internal Revenue and the Secretary of the Treasury, from the first enactment of the refunding statute, to make allowance in cases of this character to the judg ment creditor, and not to require the collector first to pay the same out of his own money, and then himself to apply for repayment from the public treasury. The Supreme Court affirmed the judgment of the court of claims. United States v. Frerichs, 124 U. S. 315.

An act of Congress authorizing the refund of taxes illegally paid does not give the claimant the right to interest from the date of the illegal collection, unless expressly granted by the act. Stuart v. Barnes, Circuit Court E. D. Pa., April 4, 1890, McKennan, J., 43 Fed. Rep. 281.

The government is not liable for unauthorized wrongs inflicted by its officers on the citizen, though occurring while engaged in the discharge of official duties. This was a claim for damages alleged to have been sustained in consequence of certain acts of Collector Bailey of the Fourth Internal Revenue District, New York, and other officers who served under or with him, and allowed in the court of claims, but reversed in the Supreme Court as above, on the authority of Gibbons v. United States, 8 Wall. 269. United States v. J. M. Cumming, 130 U. S. 432.

The commissioner is authorized, not obliged, to refund taxes erroneously collected; but he should refund in all such cases, except where the fault of the taxpayer, or his waiver of his rights, or his long acquiescence, or other sufficient circumstances discredit the claim. 13 Opinions Atty.-Gen.

439.

An application filed with the Commissioner of Internal Revenue for the refunding of taxes alleged to have been erroneously or illegally assessed and collected, although informal or defective, may nevertheless be regarded as a claim within the meaning of the law, so far at least as to be a foundation for an amendment. 14 Opinions Atty.-Gen.

615.

Where a distiller, in consequence of the destruction of a revenue stamp without fault on his part, is forced to affix a

new one, the commissioner on proof of these facts may direct the price of the second stamp, or rather the tax thus a second time exacted, to be refunded, under the power given him to refund taxes illegally assessed. 13 Opinions Atty.

Gen. 574.

Reopening rejected claims for refunding. 14 Opinions Atty.-Gen. 275.

Right of commissioner to refund notwithstanding advice of Secretary to the contrary. Sybrandt v. United States, 19 Court of Claims, 46.

When a tax has been exacted pursuant to law, there is in the collection thereof "nothing wrongful," within the meaning of Sec. 3220 R. S. 16 Opinions Atty.-Gen. 667.

After an appeal for abatement of tax has been made to the commissioner and rejected, it is not necessary after payment to make a second appeal for refunding to entitle the taxpayer to sue the collector. San Francisco Savings and Loan Society v. Carey, 2 Sawyer, 393.

Under Sec. 3220 R. S., a regulation made by the Secretary of the Treasury, that, before a claim for refunding exceeding $250 is fully decided, the Commissioner of Internal Revenue shall transmit the case, with the evidence in support of it, to the Secretary for his consideration and advisement, is a very reasonable regulation, and, where a claim was so transmitted and returned without approval, no final determination of the same binding on the government was made. Stotesbury et al. v. United States, November 21, 1892, Supreme Court Decision.

its accident

SEC. 3221, as amended by Sec. 6, act March 1, 1879. The Secretary of the Treasury, upon the pro- Taxes on spirduction to him of satisfactory proof of the ally destroyed. 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 ware

Sec. 6, act

house 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 hereMarch 1, 1879. after 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.

The provisions of this section made applicable to spirits in general bonded warehouses, by Sec. 3294 g (act August 28, 1894); also to fruit-brandy stored in special bonded warehouses, by Sec. 5, act March 3, 1877.

Tax may be abated on whiskey remaining in warehouse beyond the bonded period and destroyed by fire. 18 Opinions Atty.-Gen. 379.

In this suit it was held that the tax on distilled spirits destroyed by fire in a distillery warehouse, for the payment of which tax Thompson was liable as surety on bond, was insurable, and that the insurance companies were liable to pay the same. The court says: "So long as it (the whiskey) was in warehouse, plaintiffs were not liable for the tax. The moment it was lost they became liable. This was a fair subject of insurance." Insurance Companies v. Thompson, 5 Otto, 547.

The United States sued the sureties on warehousing bonds