The United States v. Samuel J. Tilden.

that he neglected to make a list or return to the assistant assessor, of the amount of his income; that thereafter the assessor made a list of his annual income, and assessed the duty thereon, and added twenty-five per centum, as a penalty, to the amount of the duty assessed; and that the defendant paid to the collector the amounts of tax and penalties so assessed.

The seventh count is based on the same sections of the Act of 1864, as amended by $1 of the Act of 1865, and as further amended by § 9 of the Act of July 13th, 1866 (14 U. S. Stat. at Large, 137 to 140), and claims to recover, as due on the 30th of April, 1867, the sum of $5,350, as a tax of five per centum on an income of $107,000 for the year next preceding the 1st of January, 1867. The eighth count is based on the same sections of the Act of 1864, as amended by § 1 of the Act of 1865, and as further amended by § 9 of the Act of 1866, and as further amended by § 13 of the Act of March 2d, 1867 (14 U. S. Stat. at Large, 477 to 480), and claims to recover, as due on the 30th of April, 1868, the sum of $6,215, as a tax of five per centum on an income of $124,300 for the year next preceding the 1st of January, 1868. The defendant, in his answer to the complaint, denies all the allegations of the seventh and eighth counts, except those as to his residence and profession and ownership of certain property. For a further defence to the seventh and eighth counts, his answer avers, in respect to each of those two years, that he neglected to make a list or return to the assistant assessor of the amount of his income; that thereafter the assessor made a list of his annual income, and assessed the duty thereon, and added fifty per centum, as a penalty, to the amount of the duty assessed; and that the defendant paid to the collector the amounts of tax and penalties so assessed.

The ninth count is based on the same statutory provisions on which the eighth count is based, and claims to recover, as

The United States v. Samuel J. Tilden.

due on the 30th of April, 1869, the sum of $6,625, as a tax of five per centum on an income of $132,500 for the year next preceding the 1st of January, 1869. The defendant, in his answer to the complaint, denies all the allegations of the ninth count, except those as to his residence and profession and ownership of certain property. For a further defence to the ninth count, his answer avers that he neglected to make a list or return to the assistant assessor of the amount of his income for said year; that thereafter the assessor made a list of his annual income for said year, and assessed the duty thereon ; and that the defendant paid to the collector the amount of tax so assessed.

The tenth count is based on the same statutory provisions on which the eighth count is based, and claims to recover, as due on the 30th of April, 1870, the sum of $35,550, as a tax of five per centum on an income of $711,000 for the year next preceding the 1st of January, 1870. The defendant, in his answer to the complaint, denies all the allegations of the tenth count, except those as to his residence and profession and ownership of certain property. For a further defence to the tenth count, his answer avers that he neglected to make a list or return to the assistant assessor, of the amount of his income for said year; that thereafter the assessor made a list of his annual income for said year, and assessed the duty thereon, and added fifty per centum, as a penalty, to the amount of the duty assessed; and that the defendant paid to the collector the amounts of tax and penalties so assessed.

The eleventh count is based on §§ 6 to 17 of the Act of July 14th, 1870 (16 U. S. Stat. at Large, 257 to 261), and claims to recover, as due on the 30th of April, 1871, the sum of $13,887.50, as a tax of two and one-half per centum on an income of $555,500 for the year next preceding the 1st of January, 1871. The twelfth count is based on the same sec

The United States v. Samuel J. Tilden.

tions of the Act of 1870, and claims to recover, as due on the 30th of April, 1872, the sum of $2,500, as a tax of two and onehalf per centum on an income of $100,000 for the year next preceding the 1st of January, 1872. The defendant, in his answer to the complaint, denies all the allegations of the eleventh and twelfth counts, except those as to his residence and profession and ownership of certain property. For a further defence to the eleventh and twelfth counts, his answer avers, in respect to each of those two years, that he neglected to make a list or return to the assistant assessor, of the amount of his income; that thereafter the assessor made a list of his annual income and assessed the duty thereon, and added fifty per centum, as a penalty, to the amount of the duty assessed; and that the defendant paid to the collector the amounts of tax and penalties so assessed.

The plaintiffs demur to each of the above recited "further" defences, on the ground that they do not any of them constitute defences to the complaint or to any part of it.

The demurrer to the further defences to the second, third and fourth counts raises the question, whether the causes of action in those counts are barred by the facts, that the defendant made a returu, and an amount of tax was assessed against him, and he paid it, and no imperfection was discovered until after the 13th of July, 1866. The demurrer to the further defences to the fifth, sixth, seventh, eighth, tenth, eleventh and twelfth counts, raises the question, whether the causes of action in those counts are barred by the facts, that the defendant made no return, and an amount of tax and a penalty were assessed against him, and he paid them. The demurrer to the further defence to the ninth count raises the question, whether the cause of action in that count is barred by the facts, that the defendant made no return, and an amount of tax was assessed against him, and he paid it.

The United States v. Samuel J. Tilden,

The Act of 1862, in imposing the income tax, provides (90), that "there shall be levied, collected and paid annually," upon annual income, a duty specified in, and fixed by, the Act, on the amount of such income, three per centum or five per centum, according to the amount of the income. It then goes on to specify (§ 91) what deductions shall be made, in estimating the annual income. It provides (93), that. it shall be the duty of all persons to make return of income, and that, where no return is made, the assessor or assistant assessor shall assess the amount of income. In either case, the amount of income and the amount of tax or duty are required (§ 14) to be entered on a list. The Act provides (S$ 19 and 92) that the collector shall collect the tax. The tax is to be collected (§ 16) according to the list. Sections 19 to 21 provide for a collection by distraint and sale of property, both personal and real.

The joint resolution of 1864 provides, that," in addition to the income duty already imposed by law, there shall be levied, assessed and collected," a special income duty upon income, for the year ending December 31st, 1864, "by levying, assessing and collecting said duty" at the rate of five per centum, and that "the same shall be levied, assessed, estimated and collected, except as to the rate, according to the provisions of existing laws for the collection of an income duty annually."

The Act of 1864 provides (§ 116), that "there shall be levied, collected and paid annually," upon annual income, a duty specified in, and fixed by, the Act, on the amount of such income, five per centum, or seven and a half per centum, or ten per centum, according to the amount of the income. It specifies (117) what deductions shall be made in estimating the annual income. It provides (§ 118), that it shall be the duty of all persons to make return of income, and that, where no return is made, the assessor or assistant assessor shall assess

The United States v. Samuel J. Tilden.

the amount of income " and the duty thereon." In either case, the amount of income and the amount of tax or duty are required (§ 18) to be entered on a list. The Act provides (§§ 28 and 119) that the collector shall collect the tax. The tax is to be collected (§ 20) according to the list. Sections 28 to 31 provide for a collection by distraint and sale of property, both personal and real.

The amendments made by the Act of 1865 do not substantially change the scheme of procedure. The duty is made five per centum and ten per centum, according to the amount. of the income, and an addition of twenty-five per centum penalty to the amount of the duty, when there is a neglect to make a return, is provided for. This penalty is increased to fifty per centum, by the Act of 1866.

The Act of 1866, in amending § 41 of the Act of 1864, introduced (14 U. S. Stat. at Large, 111) a provision, that "taxes may be sued for and recovered, in the name of the United States, in any proper form of action, before any Circuit or District Court of the United States for the District within which the liability to such tax may have been or shall be incurred, or where the party from whom such tax is due may reside at the time of the commencement of said action.” That provision is re-enacted in § 733 of the Revised Statutes, in these words: "Taxes accruing under any law providing internal revenue may be sued for and recovered either in the District where the liability for such tax occurs or in the District where the delinquent resides." By § 919 such suits must be brought in the name of the United States. By § 563 jurisdiction is given to the District Courts of all suits at common law brought by the United States and a like jurisdiction is given to the Circuit Courts by § 629. The Act of 1866 did not change in substance the former scheme of procedure, nor did the Act of 1867, nor the Act of 1870.