A-7769, MARCH 25, 1925, 4 COMP. GEN. 805

A-7769: Mar 25, 1925

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SUCH RECOVERY IS A SETTLEMENT OF THE WHOLE DEMAND AND A SUBSEQUENT APPLICATION FOR THE REMAINDER WILL BE DISALLOWED. THE PRESUMPTION ARISES THAT IT WAS NEVER VALID OR THAT IT HAS ALREADY BEEN PAID. THIS IS A TAX CLAIM ARISING UNDER SECTION 19 OF THE CIRCULATION TAX ACT OF FEBRUARY 8. SUBSEQUENTLY CLAIM FOR REFUND WAS MADE TO THE COMMISSIONER OF INTERNAL REVENUE FOR THE ENTIRE AMOUNT OF THE TAX PAID. WHICH WAS BY HIM REJECTED. FROM WHICH AN APPEAL WAS TAKEN TO THE SUPREME COURT OF THE UNITED STATES. WHERE THE JUDGMENT OF THE TRIAL COURT WAS AFFIRMED AT THE OCTOBER TERM. CLAIMANT HAVING SLEPT UPON WHATEVER EQUITIES IT MAY HAVE HAD FOR 40 YEARS. EVERY PRESUMPTION IS NOW AGAINST RECOVERY. CLAIMANT'S LONG SILENCE IS SIGNIFICANT AND BRINGS THIS CLAIM CLEARLY WITHIN THE RULE OF STALE CLAIMS.

A-7769, MARCH 25, 1925, 4 COMP. GEN. 805

SETTLEMENTS, PARTIAL - CLAIMS, STALE WHERE THE COMMISSIONER OF INTERNAL REVENUE DISALLOWED A CLAIM FOR REFUND OF A TAX COLLECTED UNDER THE CIRCULATION TAX ACT OF FEBRUARY 8, 1875, 18 STAT. 311, AND THE CLAIMANT BROUGHT SUIT FOR ONLY A PART OF THE CLAIM AND RECOVERED JUDGMENT FOR THE AMOUNT OF THE SUIT, SUCH RECOVERY IS A SETTLEMENT OF THE WHOLE DEMAND AND A SUBSEQUENT APPLICATION FOR THE REMAINDER WILL BE DISALLOWED. WHERE A CLAIMANT HAS SLEPT ON ITS RIGHTS FOR 40 YEARS THE CLAIM BECOMES STALE, AND THE PRESUMPTION ARISES THAT IT WAS NEVER VALID OR THAT IT HAS ALREADY BEEN PAID.

DECISION BY COMPTROLLER GENERAL MCCARL, MARCH 25, 1925:

ZION'S COOPERATIVE MERCANTILE INSTITUTION, OF SALT LAKE CITY, UTAH, APPLIED JANUARY 9, 1925, FOR REVIEW OF SETTLEMENT NO. O-17889, DATED JANUARY 2, 1925, DISALLOWING ITS CLAIM FOR $6,810.92. THIS IS A TAX CLAIM ARISING UNDER SECTION 19 OF THE CIRCULATION TAX ACT OF FEBRUARY 8, 1875, 18 STAT. 311, WHICH PROVIDES:

THAT EVERY PERSON, FIRM, ASSOCIATION OTHER THAN NATIONAL BANK ASSOCIATIONS, AND EVERY CORPORATION, STATE BANK, OR STATE BANKING ASSOCIATION SHALL PAY A TAX OF TEN PERCENTUM ON THE AMOUNT OF THEIR OWN NOTES USED FOR CIRCULATION AND PAID OUT BY THEM.

CLAIMANT PAID A CIRCULATION TAX OF $16,810.92 FOR THE YEARS 1878 AND 1879 UNDER THE ABOVE STATUTE ON CERTAIN OBLIGATIONS IN THE FOLLOWING FORM:

SALT LAKE CITY, OCTOBER 6, 1876.

PAY DAVID O. CALDER OR BEARER FIVE DOLLARS IN MERCHANDISE AT RETAIL. FIVE.

FIVE.

TO H.D. CLAWSON,

SUP-T. Z.C.M.I.

G.H. SNELL.

SUBSEQUENTLY CLAIM FOR REFUND WAS MADE TO THE COMMISSIONER OF INTERNAL REVENUE FOR THE ENTIRE AMOUNT OF THE TAX PAID, WHICH WAS BY HIM REJECTED. CLAIMANT THEN BROUGHT SUIT IN THE FEDERAL COURT OF THE TERRITORY OF UTAH FOR $10,450 OF THE TOTAL TAX PAID AND OBTAINED JUDGMENT FOR THE AMOUNT IN SUIT, FROM WHICH AN APPEAL WAS TAKEN TO THE SUPREME COURT OF THE UNITED STATES, WHERE THE JUDGMENT OF THE TRIAL COURT WAS AFFIRMED AT THE OCTOBER TERM, 1883, IN HOLLISTER, COLLECTOR, V. ZION'S COOPERATIVE MERCANTILE INSTITUTION. 111 U.S. 62. IN COMPLIANCE WITH THE DECISION AND JUDGMENT OF THE COURT, THE COMMISSIONER OF INTERNAL REVENUE IN THE YEAR 1884 REFUNDED THE AMOUNT RECOVERED WITH INTEREST.

CLAIMANT HAVING SLEPT UPON WHATEVER EQUITIES IT MAY HAVE HAD FOR 40 YEARS, EVERY PRESUMPTION IS NOW AGAINST RECOVERY. CLAIMANT'S LONG SILENCE IS SIGNIFICANT AND BRINGS THIS CLAIM CLEARLY WITHIN THE RULE OF STALE CLAIMS.

IN A SIMILAR CASE IT WAS HELD IN 4 COMP. DEC. 276 THAT---

WHEN A CLAIMANT HAS SLEPT ON HIS RIGHTS FOR MORE THAN THIRTY-TWO YEARS HE HAS BEEN GUILTY OF LACHES, AND A PRESUMPTION ARISES THAT THE CLAIM WAS NEVER VALID OR THAT IT HAS ALREADY BEEN PAID.

CLAIMANT CONTENDS THAT THE STATUTE OF LIMITATIONS DOES NOT RUN AGAINST THE RIGHT OF THE COMMISSIONER OF INTERNAL REVENUE TO MAKE REFUNDMENT IN THIS CASE WHICH MAY BE CONCEDED, AND IT MAY ALSO BE CONCEDED THERE IS NO STATUTORY INHIBITION AGAINST THE RIGHT OF THE GENERAL ACCOUNTING OFFICE TO CONSIDER THE CLAIM AT THIS TIME; BUT IT IS SETTLED LAW THAT ACCOUNTING OFFICERS HAVE NO RIGHT TO SETTLE STALE CLAIMS. WADDEL V. UNITED STATES, 25 CT.CLS. 323; HUME V. BEALE, 17 WALL. 336; MARSH V. WHITMORE, 21 WALL. 178; SULLIVAN V. KENNEBEC R.R., 94 U.S. 906; GODDEN V. KIMMEL, 99 U.S. 201; SPEIDEL V. HENRICI, 120 U.S. 377.

BUT BE THIS AS IT MAY, COMPTROLLERS OF THE TREASURY HAVE FREQUENTLY HELD THAT WHERE A CLAIMANT HAS HERETOFORE PRESENTED AND HAS BEEN ALLOWED A CLAIM FOR A PART OF AN ENTIRE DEMAND ARISING OUT OF THE SAME SERVICE AND IN THE SAME RIGHT SUCH PARTIAL ALLOWANCE IS A SETTLEMENT OF THE WHOLE DEMAND, AND A SUBSEQUENT APPLICATION FOR THE REMAINDER WILL BE DISALLOWED. 3 COMP. DEC. 128; 4 ID. 328.

THIS QUESTION WAS SETTLED BY THE SUPREME COURT OF THE UNITED STATES IN THE CASE OF BAIRD V. UNITED STATES, 96 U.S. 430, WHERE IT WAS HELD THAT A RECOVERY OF JUDGMENT IN THE COURT OF CLAIMS FOR PART OF WHAT WAS DUE AT THE TIME SUIT WAS BROUGHT WAS A BAR TO A SUBSEQUENT SUIT FOR THE RESIDUE. BARTELS V. SCHELL, 16 FED.REP. 341; GEARING V. UNITED STATES, 48 CT.CLS. 25; JOICE V. UNITED STATES, 51 CT.CLS. 446; POOLE ENGINEERING CO. V. UNITED STATES, 57 CT.CLS. 235; PHILADELPHIA STEAM HEATING CO., 258 U.S. 120.

SINCE SUIT WAS ONLY BROUGHT FOR A PART OF THE ORIGINAL CLAIM, IT MUST BE HELD THAT, EXCEPT AS TO THE AMOUNT IN SUIT, CLAIMANT ACCEPTED THE DECISION OF THE COMMISSIONER OF INTERNAL REVENUE AS FINAL.