Bates Mfg. Co. v. United States, 3580.
| Decision Date | 18 June 1937 |
| Docket Number | No. 3580.,3580. |
| Citation | 19 F. Supp. 526 |
| Parties | BATES MFG. CO. v. UNITED STATES. |
| Court | U.S. District Court — District of Massachusetts |
Charles B. Rugg, Ropes, Gray, Boyden & Perkins, and Edward A. Counihan, Jr., all of Boston, Mass., and E. H. Maxcy, of Augusta, Me., for plaintiff.
Francis J. W. Ford, U. S. Atty., and Arthur L. Murray, Sp. Asst. to the U. S. Atty., both of Boston, Mass., James W. Morris, Asst. Atty. Gen., and Andrew D. Sharpe and Arthur P. Curran, Sp. Assts. to the Atty. Gen.
In this suit, which is for the recovery of federal excess profits and income taxes alleged to have been erroneously assessed and collected by the United States, the government first filed a general denial, and later filed a motion to dismiss, basing that motion upon the question of jurisdiction.
Claims for refund of the taxes paid were seasonably filed with the Commissioner of Internal Revenue, and were rejected on March 22, 1927. On March 21, 1929, the plaintiff filed, in the office of the clerk of this court, the petition now under consideration. A copy of it was not served on the United States attorney until March 25, 1929. Notice of the filing of the petition was mailed to the Attorney General on the same date. On March 28, 1929, the plaintiff filed with the court an affidavit of the service and mailing of notice as set forth above.
The government contends that the court is without jurisdiction in this case, because the plaintiff has failed to comply with the terms of the legislation by which the United States consented to be sued in cases of this type.
The motion to dismiss brings up the following questions: (1) Whether an action against the United States for the refund of taxes was "begun within two years after the disallowance" of the claim for refund, within the meaning of section 3226 of the Revised Statutes, as amended, 26 U.S.C.A. §§ 1672-1673, when a petition was filed prior to the expiration of the two-year period and a copy of the petition was served on the United States Attorney, and notice mailed to the Attorney General, three days after the statutory period had elapsed, and (2) whether possible objection to the maintenance of the suit, on the ground that the petition was not served until three days after the expiration of the period of limitations, was waived by the defendant by the filing of a general denial and the failure to raise the objection until more than eight years after the filing of the petition.
Section 3226 of the Revised Statutes provides that no suit or proceeding for the refund of taxes may be begun after two years from the date of the disallowance of the claim for refund. That statute is silent as to the mode of procedure to be adopted in beginning or commencing a suit or proceeding. 28 U.S.C.A. §§ 762, 763, however, provide that in such suits the plaintiff shall file a duly verified petition in the office of the clerk of courts having jurisdiction of the case, and that the plaintiff shall cause a copy of his petition, thus filed, to be served upon the District Attorney of the United States in said district, and shall mail a copy of same to the Attorney General of the United States, and shall thereupon cause to be filed an affidavit of such service. Section 763 provides further that the District Attorney, upon whom such service is made, shall appear and defend the interests of the United...
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