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alties so certified. Whenever it is ascertained that any list which has been or shall be delivered to any collector is imperfect or incomplete, in consequence of the omission of the name of any person liable to tax, or in consequence of any omission, or understatement, or undervaluation, or false or fraudulent statement contained in any return made by any person liable to tax, the Commissioner of Internal Revenue may, at any time within fifteen months from the time of the delivery of the list to the collector as aforesaid, enter on any monthly or special list the name of such person so omitted, together with the amount of tax for which he may have been or shall become liable, and also the name of any such person in respect to whose return, as aforesaid, there has been or shall be any omission, undervaluation, understatement, or false or fraudulent statement, together with the amount for which such person may be liable, above the amount for which he may have been or shall be assessed upon any return made as aforesaid; and he shall certify and return such list to the collector as required by law. And all provisions of law for the ascertainment of liability to any tax, or the assessment or collection thereof, shall be held to apply, so far as may be necessary, to the to the proceedings herein authorized and directed.
Assessment not conclusive. In case of an assessment made by Commissioner of Internal Revenue, and an action of assumpsit on the same, it was ruled that, when the government elects to resort to the aid of the court, it must abide by the legality of the tax. United States v. Bank of America, Circuit Court E. D. Pa., January 15, 1883, 15 Fed. Rep.
Notwithstanding the act of July 13,.1866, declares that no suit shall be maintained for the recovery of any tax errone
ously or illegally assessed or collected until an appeal be made to the commissioner, and a decision had on such appeal (now contained in Sec. 3226 R. S.), this does not preclude the defendant, in a suit by the government against him, from setting up as a defense the erroneous or illegal nature of the tax. When the government elects to resort to the aid of the courts it must abide by the legality of the tax. Clinkenbeard v. United States, 21 Wall. 65.
Under Sec. 20, act June 30, 1864, as amended (now Sec. 3182 R. S.), it is not necessary, in making reassessment for deficiencies, that the assessor should make a separate specification of deficiency for each defective return. He may assess the deficiency in the aggregate. Dandelet v. Smith, 18 Wall. 642.
This was a suit on a distiller's bond to recover tax on spirits assessed against distiller. Held that the assessment of the Commissioner of Internal Revenue was only prima facie evidence of the amount of taxes due upon the distilled spirits between the dates mentioned. If not impeached, it was sufficient to justify a recovery, but every material fact upon which liability was asserted was open to contestation. Distiller and sureties were at liberty to show that no spirits, or a less quantity than that stated by the commissioner, were distilled within the period mentioned, and thus entirely, or in part, overthrow the assessment. They were also at liberty to show a payment of the tax assessed, in whole or in part. The court below erred in instructing the jury that the assessment was to be taken and considered in its entirety, and that the government was entitled to recover the exact amount assessed, or not any sum. United States v. Rindskopf, 15 Otto, 418.
Construction of Sec. 3182 R. S.; assessment against spirits made under Sec. 3253 R. S. The tax of seventy cents per gallon on spirits was changed by the act of March 3, 1875, to ninety cents per gallon, and the change took effect from the first moment of that day. Two assessments, each covering parts of the same period of time, will not be presumed to cover the same spirits unless a double assessment is shown
affirmatively. United States v. O'Neill et al., 19 Fed. Rep. 567.
An assessment duly certified to the collector is his authority to proceed, and, like an execution to a sheriff, regular on its face, issued by a tribunal having jurisdiction of the subjectmatter, constitutes his protection. Erskine v. Hohnbach, 14 Wall. 613.
If a collector of internal revenue have a proper warrant from the assessor for the collection of taxes specially assessed, he cannot be sued in an action of trespass for distraining and selling the taxpayer's property, even though the assessment was illegal. The list duly certified by the assessor is the collector's justification. Haffin v. Mason, 15 Wall. 671.
Reassessment of taxes on distiller. Barker v. White, 11 Blatch. 445.
The authority to make assessments of taxes due is limited to the fifteen months next succeeding the delivery to the collector of the list upon which the assessment might have been made, but from which it was omitted, except in cases where it is otherwise provided by law, viz.: Sec. 3253 provides that the tax on spirits removed from the place where they were distilled, and not deposited in bonded warehouse, may be assessed upon the distiller at any time when knowledge of such fact is obtained by the Commissioner of Internal Revenue; Sec. 3293 provides for an assessment at any time of the tax where there has been an excess or loss of spirits in warehouse; Sec. 3309 provides for an assessment on the distiller if any deficiency or excess in production appears on the examination of his monthly returns; Sec. 3371 provides for the assessment of tax on tobacco, snuff, and cigars removed without stamps within two years from removal; Sec. 3437 provides for the assessment within two years of articles on which tax is required to be paid by means of a stamp removed without stamping (fermented liquors are assessed under this section, there being no specific provision for assessing such liquors, and since the act of August 28, 1894, it is also applicable to playing-cards removed without stamps); Sec. 8, act March 3, 1877, provides for the assessment at any time of
fruit-brandy removed without compliance with law; Sec. 9, act August 2, 1886, provides for the assessment within two years of oleomargarine removed without stamps. See, also, Sec. 3176 for assessment of taxes and penalties generally; and in regard to the income tax, see Secs. 29, 32, and 36, act August 28, 1894.
Obligation to pay tax does not depend upon an assessment. Dollar Savings Banks v. United States, 19 Wall. 227; King v. United States, 99 U. S. 229; United States v. Tilden, 9 Benedict, 368; United States v. Little Miami, Columbus & Xenia R. R. Co., 1 Fed. Rep. 700.
Legal effect of assessments as evidence. 23 Internal Revenue Rec. 5.
For instructions generally relative to assessments, see Int. Rev. Regulations, Series 7, No. 1, revised June 9, 1893.
lect all taxes,
and receipt for
SEC. 3183, as amended by Sec. 3, act March 1, 1879 (20 Stat. 327.) It shall be the duty of the collectors, or their deputies, in their respective thority of coldistricts, and they are authorized, to collect deputies to colall the taxes imposed by law, however the same may be designated. And every collector and deputy collector shall give receipts for all sums collected by him, excepting only when sec. 3, act the same are in payment for stamps sold and delivered; but no collector or deputy collector shall issue a receipt in lieu of a stamp representing a
March 1, 1879.
As to receipts by collectors for income taxes, see Sec. 37, act August 28, 1894.
mand of taxes.
SEC. 3184. Where it is not otherwise provided, the collector shall in person or by deputy, within Notice and deten days after receiving any list of taxes from the Commissioner of Internal Revenue, give notice to each person liable to pay any taxes stated therein, to be left at his dwelling or usual place of business, or
to be sent by mail, stating the amount of such taxes and demanding payment thereof. If such person does not pay the taxes within ten days after the service or the sending by mail of such notice, it shall be the duty of the collector or his deputy to collect the said taxes, with a penalty of five per centum additional upon the amount of taxes, and interest at the rate of one per centum a month.
In cases where claims for abatement have been made to the Commissioner of Internal Revenue and subsequently disallowed, the following instructions have been issued by the Office of Internal Revenue in regard to collecting the five per cent penalty, and one per cent per month interest on assess
If ten days are permitted to elapse between the notice, Form 17, prescribed by Sec. 3184 of the Revised Statutes, and the time when a claim for abatement is first presented to one of the officers whose duty it is to add a certificate thereto (collector or deputy collector), or when one of said officers is first applied to for assistance in the preparation of such claim, liability attaches, and the penalty, as well as such monthly interest as may accrue before payment, should be collected. If, however, such steps are taken before the ten days elapse, i. e. before the liability to penalty and interest attaches, the period intervening between the time of taking such steps and the service on the taxpayer of an official notice of the rejection of the claim should not be counted; but the ten days' limitation, within which, in order to avoid the penalty, the taxes must be paid, applies as before — that is, ten days exclusive of time not counted, as above, is all that can be allowed. The service of such notice on the taxpayer, if not personal, may be made by leaving the same at his residence or place of business with some person of suitable age and discretion, or by mailing, in which last case the service will be held to have been made on the day when in due course of mail the notice would reach the taxpayer.