Weaver v. Ewers

Citations

• 195 F. 247
• 115 C.C.A. 219
• 4 A.F.T.R. (P-H) 4191
• 1912 U.S. App. LEXIS 1370

Syllabus

<p>1. Internal Revenue (§ 38*)- 'ilegal Tax—Recovery—Conditions—Appeal to Commissioner—Sta . utes.</p> <p>Rev. St. § 3226 (U. S. Comp. St. 1901, p. 2088), providing that no suit shall be maintained to recover any internal tax alleged to have been erroneously or illegally assessed or collected until an appeal shall have been taken to the Commissioner of Internal Revenue, and a decision of the Commissioner had therein, is applicable to the collection and enforcement of the specific tax imposed on oleomargarine by Act Aug. 2, 1886, c. 840, 24 Stat. 209 (U. S. Comp. St. 1001, p. 2228).</p> <p>[Ed. Note.—For other cases, see Internal Revenue, Cent. Dig. §§ 83, 84; Dee. Dig. § 38.*]</p> <p>2. Internal Revenue (§ 38*)—Tax—Illegal Assessment—Review by Commissioner.</p> <p>Where, after the assessment of an alleged illegal oleomargarine tax, an application was made to the Commissioner of Internal Revenue for review, and the Commissioner overruled the application and refused to abate the tax, plaintiff was not bound, after paying the tax, to again appeal to the Commissioner, as provided by Rev. St. § 3226 (U. S. Comp. St. 1901, p. 2088), as a condition precedent to his right to sue the collector to recover the amount so paid; the application to abate the assessment fulfilling every purpose of such an appeal.</p> <p>[Ed. Note.—For other cases, see Internal Revenue, Cent. Dig. §§ 83, 84; Dec. Dig. § 38.*]</p> <p>.3. Internal Revenue (§ 16*)—Oleomargarine Dealers—Taxation—“Wholesale Dealer.”</p> <p>Plaintiff and his brother were both retail dealers in oleomargarine, and had paid the tax for the first six months of 1910. During that time, a wholesale shipment ordered by plaintiff not having arrived, he borrowed an unbroken package of the same material from his brother, which the latter had obtained from the same wholesale dealer from whom plaintiff’s supply had been ordered, and on arrival of plaintiff’s order tbe precise amount borrowed of the same product and brand was returned.