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JAKOVICH et al. v. MAGER, Internal Revenue Collector.

(Circuit Court of Appeals, Seventh Circuit.

June 19, 1922.)

No. 3007.

Internal revenue <@=s>45 — -So-called “tax” assessed under Prohibition Act Is penalty.

A so-called “tax” assessed under National Prohibition Act, tit, 2, § 35, is a penalty, and its collection by distraint by administrative officers is unauthorized.

Appeal from the District Court of the United States for the Eastern Division of the Northern District of Illinois.

Suit in equity by Mike Jakovich and Boza Jakovich against Harry W. Mager, Collector of Internal Revenue. Decree for defendant, and complainants appeal.

Reversed.

David D. Stansbury, of Chicago, Ill., for appellants.

Charles F. Clyne, of Chicago, Ill., for appellee.

Before ALSCHULER, EVANS, and PAGE, Circuit Judges.

EVAN A. EVANS, Circuit Judge.

This suit was brought to restrain the defendant from collecting a sum of money assessed as a tax under section 35, part 2, of the National Prohibition Act (41 Stat. 317), for the alleged illegal manufacture and sale of intoxicating liquor.

Appellants deny the manufacture or sale of any intoxicating liquor, and assert the levy is not a tax, but a penalty. Since the questions were argued in this court similar questions have been decided by the Supreme Court in favor of appellants’ contentions. Lipke v. Lederer, 258 U. S.-, 42 Sup. Ct. 549, 66 L. Ed.-, decided June 5, 1922.

Following the opinion announced on that appeal, the decree in this suit must be, and is hereby, reversed, with directions to grant appellants the relief ito which, under the decision above referred to, they are entitled.

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