Earl Warren

“ Although a taxpayer may, after payment of his tax, bring suit for the recovery thereof and thus secure a judicial determination on the questions involved, he can not, in view of section 3224 of the Revised Statutes, which prohibits suits to enjoin the collection of taxes, secure such a determination prior to the payment of the tax. The right of appeal after payment of the tax is an incomplete remedy, and does little to remove the hardship occasioned by an incorrect assessment. ”

“ Nevertheless, one of the arguments which has been most strenuously urged is that the plain language of the statute precludes, or at the very least strongly militates against, a decision that full payment of the income tax assessment is a jurisdictional condition precedent to maintenance of a refund suit in a District Court. ”

“ An error as to the applicability of a principle to a unique factual situation does not mean that the principle itself has been rejected.↑ The ground for the decision may have been that the District Court had no jurisdiction because the taxpayer was contesting the legality of the balance of the assessment before the Board of Tax Appeals.↑ In welcoming the members of the Board of Tax Appeals on July 16, 1924, Under Secretary Winston described the difficulties which had arisen in the past. ”

“ One distinct possibility which would emerge from a decision in favor of petitioner would be that a taxpayer might be able to split his cause of action, bringing suit for refund of part of the tax in a Federal District Court and litigating in the Tax Court with respect to the remainder. ”

“ Favoring petitioner would be the theory that, in the early nineteenth century, a suit for recovery of part payment of an assessment could be maintained against the Collector, together with the absence of any conclusive evidence that Congress has ever intended to inaugurate a new rule; favoring respondent would be the Cheatham statement and the language of the 1921 statute. ”

“ He must first find the cash for a liability for which he may not have provided. * * * The first interest of all of the people is, of course, that the Government continue to function, and to do this it must have the means of prompt collection of the necessary supplies to keep it going, that is, taxes. The method was, therefore, the determination by the Commissioner of the amount of tax due, its collection and suit to recover. * * * (T) he tax as assessed had to be paid and the taxpayer was left to his remedy in the courts. ”

“ Act of Mar. 3, 1863, c. 74, 12 Stat. 729; Act of June 30, 1864, c. 173, § 44, 13 Stat. 239-240.↑ See note 16, infra.↑ Cheatham was decided in O.T.1875, while the phrases in question were added to the statute on June 6, 1872. ”

“ Rudick and Wender, Federal Income Taxation, 32 N.Y.U.L.Rev. 751, 777-778; Note, 44 Calif.L.Rev. 956; Note, 2 How.L.J. 290.↑ See I.R.C. (1954) , §§ 1 (a) , 1 (b) (1) , 68A Stat. 5, 6, 26 U.S.C.A. § 1 (a) , (b) (1) . ”