The opinion of the court was delivered by: Campbell, District Judge.
This is a suit involving income taxes for the years 1943 to
1946, both inclusive. Plaintiff seeks the following relief: (1)
Refund of deficiency taxes assessed and paid for the years 1943
and 1944; (2) Cancellation of deficiency taxes erroneously
assessed for the years 1945 and 1946. In his answer, defendant
sets up the following legal defenses challenging the jurisdiction
of the Court to entertain the suit: (1) As to the 1943 and 1944
taxes — no claim for refund has been filed with the Commissioner
of Internal Revenue; (2) As to the 1945 and 1946 taxes — the
deficiencies have been proposed but never actually assessed. A
pre-trial conference of the cause was held, at which time the
Court took the legal defenses set up in defendant's answer under
It is apparent on the face of the pleadings that the legal
defenses are valid, precluding plaintiff from maintaining this
action. Section 3772 of the Internal Revenue Code, 26 U.S.C.A. §
"§ 3772. Suits for refund.
"(1) Claim. No suit or proceeding 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 a claim for refund or credit has been
duly filed with the Commissioner, according to the provisions of
law in that regard, and the regulations of the Secretary
established in pursuance thereof."
No claim having been filed for any of the tax years in
question, it follows, therefore, that this Court lacks
jurisdiction to hear the matter.
Insofar as the 1945 and 1946 taxes are concerned, there is an
additional reason for barring plaintiff from relief. As stated in
defendant's legal defense, the deficiency taxes for those years
have never actually been assessed, although they have been
proposed. In effect, then, plaintiff seeks to restrain such
assessment, which action is specifically prohibited in Section
3653 of the Internal Revenue Code: "(a) Tax. Except as provided
in sections 272(a), 871(a) and 1012(a), no suit for the purpose
of restraining the assessment or collection of any tax shall be
maintained in any court." 26 U.S.C.A. § 3653(a).
On motion of the Court, therefore, the cause is hereby
dismissed for lack of jurisdiction.
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