Joseph McKenna

“ Section 3226 provides that no suit shall be maintained for the recovery of a tax illegally or erroneously assessed or collected, 'until appeal shall have been duly made to the Commissioner of Internal Revenue, according to provisions of law in that regard, and the regulations of the Secretary of the Treasury established in pursuance thereof, and a decision of the commissioner has been had therein.' If, however, it is provided, decision be delayed more than six months from the date of the appeal, suit may be brought within another period prescribed, which it is not necessary to mention. ”

“ Section 29 of the act of 1898 provided that any person or persons having in charge or trust, as administrators, etc., any legacies or distributive shares arising from personal property, the amount of the property exceeding $10,000 in actual value, passing, after the passage of the act, from any person possessed of the property, either by will or by the intestate laws of any state or territory, was made subject to a tax to be paid to the United States; the amount of tax being dependent upon the degree of relationship of the taker to the person who died possessed of the property. ”

“ The tax there involved was paid under protest and there had been an application in writing by the payer of it for a refund of the amount. The application was held to have satisfied section 3226 and that there was no necessity for another after the tax was paid. The case at bar does not present the same situation. Its tax was paid without protest, and appellant seeks to avail herself of the act of 1912-not by performing its condition, but by asserting an exemption from performance because of its supposed inutility. ”