Ewbank v. United States
Decision Date | 08 July 1931 |
Docket Number | No. 4485.,4485. |
Parties | EWBANK et al. v. UNITED STATES. |
Court | U.S. Court of Appeals — Seventh Circuit |
Louis B. Ewbank, Samuel Dowden, and Merlin M. Dunbar, all of Indianapolis, Ind., for appellants.
George E. Q. Johnson, of Chicago, Ill., and George R. Jeffrey, U. S. Dist. Atty., of Indianapolis, Ind., for the United States.
Before ALSCHULER, EVANS, and SPARKS, Circuit Judges.
Appellants feel aggrieved by reason of the judgment entered in the District Court, 37 F.(2d) 383, dismissing the complaint by them filed wherein they sought to recover $526,869.22 previously paid under protest as a federal transfer tax upon the estate of Volney T. Malott, who died June 14, 1921. Appellants, as trustees named in the will of said deceased Malott, based their right to recover upon a construction which they give to the word "accrued" as it appears in the Revenue Act of 1921, § 1400 (42 Stat. 320), which reads as follows:
At the time of Malott's death, the Revenue Act of 1918 was in effect. The Revenue Act of 1921 repealed the Revenue Act of 1918, except as set forth in subdivision (b) and except for 1 USCA § 29, which reads as follows: "The repeal of any statute shall not have the effect to release or extinguish any penalty, forfeiture, or liability incurred under such statute, unless the repealing Act shall so expressly provide, and such statute shall be treated as still remaining in force for the purpose of sustaining any proper action or prosecution for the enforcement of such penalty, forfeiture, or liability."
Section 406 of the Revenue Act of 1918 (40 Stat. 1099) provides: "That the tax shall be due one year after the decedent's death; * * *"
Appellants argued that the tax did not become due under section 406 until one year after the decedent's death; therefore it had not accrued when the 1921 Act was passed; that inasmuch as the exception to the section which repealed the 1918 Act applied to taxes, which had "accrued" under the 1918 Act at that time, it could not apply to a tax which, but for the repeal, would have become due and payable on the Malott estate.
The same question was presented to this court and decided adversely to appellants in Hodgkins et al., Executors, v. Commissioner, 44 F.(2d) 43. We are now asked to reconsider the decision in that case because the argument now advanced was not fully considered in disposing of that case.
Our attention has been called to many decisions, some earlier...
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