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FOX v. EDWARDS.

(District Court, S. D. New York.

December 12, 1921.

On Rehearing, February 24, 1922.)

Internal revenue (&wkey;38-~ltem of income tax voluntarily paid not recoverable.

Item of income tax voluntarily paid for the year 1918 without protest or complaint, without calling the government’s attention to the right to a refund prior to March, 1921, could not be recovered, notwithstanding Revenue Act 1918, § 252 (Comp. St. Supp. 1919, § 6336%uu).

At Law. Action by Benjamin Fox against William H. Edwards.

Defendant’s demurrer sustained, and complaint dismissed.

Alexander Slater, of New York City, for plaintiff.

William Hayward, U. S. Atty.J and Richard S. Holmes, Sp. Asst. U. S. Atty., both, of New York City, for defendant.

KNOX, District Judge.

When the within demurrer came on for argument, there was a default upon behalf of the plaintiff, and no brief has been filed by or for him. I am therefore deprived of the benefit of such views as he or his counsel may entertain with respect to the facts and law here involved. It appears from the complaint, to which defendant demurred, that the money for the recovery of which suit was brought was paid voluntarily in March, 1919, as and for a part of plaintiff’s income tax for the year 1918. The item of loss, upon account of which plaintiff now believes himself entitled to a refund, was not called to the attention of any government oficial prior to March, 1921. The originad tax having been transmitted to the treasury without protest or complaint upon the part of plaintiff, it seems to me that as against the collector there could be no recovery at common law, nor under the statutes relating to him or his office.

It is possible that plaintiff has some rights granted to him under the provisions of section 252 of the Revenue Act of 1918 (Comp. St. Ann, Supp. 1919, § 6336j/guu); but, if so, I am of opinion that such rights cannot be asserted in a suit against the collector who received plaintiff’s voluntary payment in 1918. Judgment may be entered sustaining the demurrer of defendant and dismissing the complaint.

On Rehearing.

It is my judgment that there is nothing in section 252 of the Revenue Act upon which plaintiff relies which relieves him from the effect of having voluntarily paid an amount of tax against which he might have offset a bad debt. The tax was paid by plaintiff with full knowledge *414of all the facts, and without any interposition of the government or any of its officials, and to hold that a taxpayer is entitled for years after the payment of a tax to harass and annoy the taxing officials and the courts as to the unwisdom, impropriety, or oversight of what he himself did, when under no coercion and compulsion upon the part of the government, is something I am unwilling to do. As to the purpose and effect of section 252 of the Revenue Act, see Holmes, Federal Taxes (1922 Ed.) p. &90. The order heretofore entered herein will stand.

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