CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE SECOND CIRCUIT.
Taft, Holmes, Van Devanter, McReynolds, Brandeis, Sutherland, Butler, Sanford, Stone
MR. JUSTICE BUTLER delivered the opinion of the Court.
In No. 366, respondent, March 26, 1918, filed its return of income and excess-profits taxes for 1917 and paid the amount shown due. Shortly before the expiration of five years after the return the commissioner assessed and the collector demanded payment of additional income and excess-profits taxes. Respondent refused to pay. More than five years after the return the collector distrained and sold personal property of the respondent to pay the amount claimed.
In No. 367, respondent, February 28, 1917, filed his return of income taxes for 1916 and paid the amount shown due. Later an additional tax was assessed; and, more than five years after the return, the collector sought to enforce payment by distraint. Respondent brought suit to restrain the collection on the ground that it was barred by the limit fixed by § 250 (d), Revenue Act of 1921 (c. 136, 42 Stat. 227, 265), and that respondent had no adequate remedy at law. The district court denied
relief and its decree was affirmed by the Circuit Court of Appeals. 297 Fed. 371. The latter expressed the view that distraint was barred, and held that respondent had an adequate remedy at law. Later the collector enforced payment by distraint.
In No. 368, respondent, February 27, 1917, filed his income tax return for 1916 and paid the amount shown due. The commissioner, February 27, 1922, assessed an additional income tax. In 1924 the collector enforced payment by distraint.
Each respondent sued in the southern district of New York to recover the amount so collected. Judgments for respondents were affirmed in the Circuit Court of Appeals. 10 F.2d 1017. Writs of certiorari were granted. 271 U.S. 658, 659.
The question for decision is this: Where, under the tax laws enacted prior to the Revenue Act of 1921, income and excess-profits taxes were assessed within five years after filing return, does § 250 (d) of that Act bar collection by distraint proceedings begun after the expiration of the five-year period?
The part of the subdivision that has a bearing is printed in the margin.*fn1 The clause in controversy is: "No suit
or proceeding for the collection of any such taxes . . . shall be begun, after the expiration of five years after the date when such return was filed." Petitioner insists that the word "proceeding" refers only to a proceeding in court and means the same as "suit"; and that the ...