by John Marshall Harlan

“ We are of opinion that the liability of the bank, under section 120, depends solely upon the questions whether dividends were, in fact, declared due and payable to stockholders from its earnings, income, or gains, and whether undistributed sums were, in fact, made or added to its surplus or contingent fund. ”

“ If the bank, in good faith, and by mistake, made a declaration of dividends, or an addition to its surplus or contingent funds, when it was not in a condition to do so, the mistake cannot be corrected by the courts in an action brought to recover the tax. ”