Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Official citation and/or docket number and footnotes (if any) for this case available with purchase.

Learn more about what you receive with purchase of this case.

ENGLAND v. UNITED STATES

United States District Court, Eastern District of Illinois


April 24, 1958

WILLIAM ENGLAND AND MARY ENGLAND, PLAINTIFFS,
v.
UNITED STATES OF AMERICA, DEFENDANT.

The opinion of the court was delivered by: Juergens, District Judge.

Plaintiffs filed their complaint alleging that they are citizens of the State of Illinois; that this is an action of a nature arising under the laws of the United States and more particularly, Section 1346(b) of Title 28 U.S.C.A.

The defendant filed its answer setting out two affirmative defenses. The first defense charges that the complaint fails to state a claim against the defendant upon which relief can be granted. The court will first examine the complaint in view of this defense.

In general, the complaint alleges that the plaintiffs were caused to pay to the defendant certain sums of money as a result of fraudulent representation of defendant's agents and asks judgment against the defendant.

The plaintiffs contend that the action arises out of the fraudulent representations of the defendant's agents and that it is because of this fraud that this action is brought. However, an examination of the complaint, viewed in the light most favorable to the plaintiffs, clearly shows that the action is one to recover the payment of an internal-revenue tax, which payment was made either in the form of an actual payment of tax, or a compromise settlement in payment of tax, or an application of an overpayment toward an alleged amount of tax due by the plaintiffs to the defendant.

Since the complaint shows that the controversy is concerned with, and pertains to a tax, the provisions of Section 1346(b) (properly known as the Tort Claims Act) do not apply.

In order to obtain a refund for the overpayment of tax, plaintiff is required to proceed pursuant to Section 1346(a)(1), Title 28 U.S.C.A., which provides as follows:

    "(a) The district courts shall have original
  jurisdiction, concurrent with the Court of Claims,
  of:

    "(1) Any civil action against the United States for
  the recovery of any internal-revenue tax alleged to
  have been erroneously or illegally assessed or
  collected, or any penalty claimed to have been
  collected without authority or any sum alleged to
  have been excessive or in any amount wrongfully
  collected under the internal-revenue laws, (i) if the
  claim does not exceed $10,000 or (ii) even if the
  claim exceeds $10,000 if the collector of internal
  revenue by whom such tax, penalty or sum was
  collected is dead or is not in office as collector of
  internal revenue when such action is commenced;"

In order to recover under this section, an essential condition pursuant to such right to recover by suit is that a claim for refund must first be made. Ronald Press Co. v. Shea, 2 Cir., 114 F.2d 453. A suit for refund should be dismissed for want of jurisdiction where a taxpayer failed to allege and prove that a claim for refund had been filed. United States v. Chicago Golf Club, 7 Cir., 89 F.2d 914, 106 A.L.R. 209. Before a civil action for refund may be maintained, C.A., must be adhered to. Section 7422, Title 26 U.S.C.A., provides in pertinent parts as follows:

    "(a) No suit prior to filing claim provisions of
  Section 7422, Title 26 U.S. for refund. — No suit or
  proceedings 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 Secretary or his delgate, according to
  the provisions of law in that regard and the
  regulations of the Secretary or his delegate
  established in pursuance thereof."

Nowhere in the complaint does it appear, nor do the plaintiffs in any manner show, that the statute above set out has been complied with. Therefore, this court has no jurisdiction to grant the relief sought insofar as it pertains to the refund of internal-revenue tax.

The plaintiffs ask for a declaratory judgment in both counts of the complaint.

Declaratory judgments are a creature of statute and, therefore, may be pursued only in accordance with the provisions of that statute. Section 2201, Chapter 28 U.S.C.A., makes provision for declaratory judgments. That statute provides in pertinent parts as follows:

    "In the case of actual controversy within its
  jurisdiction, except with

  respect to Federal taxes, any court of the United
  States [and the District Court for the Territory of
  Alaska], upon the filing of an appropriate pleading,
  may declare the rights and other legal relations of
  any interested party seeking such declaration,
  whether or not further relief is or could be sought *
  *".

The plaintiffs have no standing to proceed under the declaratory judgment act since that act specifically excludes controversies concerning federal taxes and it is upon a claim concerning federal taxes that this complaint is based.

Upon a consideration of the complaint as a whole, in a light most favorable to the plaintiffs, the court finds that the complaint fails to state a cause of action upon which relief may be granted. Therefore, in accordance with the first affirmative defense set up by the defendant, the complaint should be dismissed.

19580424

© 1992-2003 VersusLaw Inc.



Buy This Entire Record For $7.95

Official citation and/or docket number and footnotes (if any) for this case available with purchase.

Learn more about what you receive with purchase of this case.