United States v. Bertelsen & Petersen Co., 306 U.S. 276 (1939)
United States v. Bertelsen & Petersen Co., 306 U.S. 276 (1939)
276
59 S.Ct. 541
83 L.Ed. 647
UNITED STATES
v.
BERTELSEN & PETERSEN ENGINEERING CO. SAME v.
JAFFRAY et al.
Nos. 416 and 437.
Argued Feb. 2, 3, 1939.
Decided Feb. 27, 1939.
In each of these causes counsel for the United States maintain the District Court
was without jurisdiction to determine the issues. The Circuit Courts of Appeal
ruled otherwise and approved judgments for respondents. The collectors who
received the excess taxes in question were either dead or out of office when the
proceedings to recover were commenced. The question of jurisdiction only is
open for our consideration.
Section 145, Judicial Code 1 empowers the Court of Claims to hear and
determine claims against the United States arising out of contract, express or
implied. Prior to 1921 section 24(20) Judicial Code gave District Courts
concurrent jurisdiction when the claim did not exceed Ten Thousand Dollars.2
The Acts of 1921, 1924, 1925 and 19263 enlarged the jurisdiction of District
Courts by adding the following to section 24(20) Judicial Code: 'Concurrent
with the Court of Claims, of any suit or proceeding, commenced after the
passage of the Revenue Act of 1921, for the recovery of any internal-revenue
tax alleged to have been erroneously or illegally assessed or collected, or of any
penalty claimed to have been collected without authority or any sum alleged to
have been excessive or in any manner wrongfully collected, under the internalrevenue laws, even if the claim exceeds $10,000, if the collector of internal
revenue by whom such tax, penalty, or sum was collected is dead or is not in
office as collector of internal revenue at the time such suit or proceeding is
commenced.'
4
Section 3226 was further amended by Act June 6, 1932, c. 209, sec. 1103(a), 47
Stat. 169, 286, so as to read as shown in the margin.4
6No. 416.
7
The Circuit Court of Appeals properly held 'this action was brought to recover
that part of a claim for refund of the 1917 overpayment which had been
disallowed by improperly applying it to an invalid assessment of a deficiency
tax for 1918.' (98 F.2d 132, 135.) Also, rightly we think, that timely and proper
claim for the overpayment for 1917 had been made as required by section 3226,
Revised Statutes as reenacted 1926.
And we accept the conclusions stated in the following excerpt from its opinion:
Lowe Bros. Co. v. United States, 304 U.S. 302, 303, 58 S.Ct. 896, 82 L.Ed.
1362, is not controlling. There the suit was begun in the District Court to
recover an overpayment of 1917 taxes the alleged result of a credit made by the
Commissioner from an admitted overpayment for 1918. For this no action
could have been maintained against the collectorhe did not make or authorize
the credit. Therefore, the amendment to section 24(20) Judicial Code, 28
U.S.C.A. 41(20) enlarging the jurisdiction of the District Court had no
application. Here the collector might have been sued since he wrongly received
payment on account of 1917 taxes. The present cause falls within the very
words of the amendment.
No. 437.
11
12
13
Thereupon his suit was brought to recover the overpayments for 1922 to 1925
under section 24(20), Judicial Code, as amended, U.S.C.A. Title 28, 41(20),
which gives District Courts jurisdiction in respect of taxes erroneously received
by a collector out of office. Respondents maintain that, in fact, there were no
On the other hand petitioner insists, the Commissioner's action in allowing the
overpayments and crediting them against alleged deficiencies amounted to
payments on account of taxes assessed for 1926 to 1928. And, as it was the
Commissioner and not the collector who caused such credit of overpayments to
deficiencies, the District Court was without jurisdiction.
15
The Circuit Court of Appeals held the suit was one to recover overpayments
admittedly made to the collector and in respect of which timely claims for
refund had been filed.
16
17
18
19
Tucker Act March 3, 1887, c. 359, 24 Stat. 505, Acts June 27, 1898, c. 503, 30
Stat. 494, July 1, 1898, c. 546, 30 Stat. 597, 649, February 26, 1900, c. 25, 31
Stat. 33, March 3, 1911, 36 Stat. 1087, 1136, U.S.C.A. Title 28, 250(1).
See Acts November 23, 1921, c. 136, 42 Stat. 227, 311, June 2, 1924, c. 234, 43
Stat. 253, 348, February 24, 1925, c. 309, 43 Stat. 972, February 26, 1926, c.
27, 44 Stat. 9, 121, U.S.C.A. Title 28, 41(20).
4