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herited lands are subject to taxation. U. S. t. Shock, (1911) 187 Fed. 870.

Effect of statute. This section applies to conveyance of interest of heirs of deceased allottee, whether such death occurred before or after May 27, 1908. Harris v. Gale, (1911) 188 Fed. 712. Compare (1909) 27 Op. Atty. Gen. 530.

1909 Supp., p. 239.

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Sale of surplus lands. The provision of this Act which authorizes the Secretary of the Interior, pursuant to rules and regulations prescribed by him, to sell the "surplus lands" of any member of the Osage tribe of Indians,

Approval of Secretary of Interior. The approval of the Secretary of the Interior was not necessary to the validity of the deed of full-blood Indian heirs executed Sept. 16, 1909, whose ancestor died August, 1907, the approval of the court having jurisdiction of the settlement of the ancestor's estate being all that is required by section 9. MaHarry v. Eatman, (Okla. 1911) 116 Pac. 935.

and Osage Indians, etc.]

and requires his approval before any such sale has validity, is applicable to the lands of deceased allottees. U. S. v. Aaron, (1910) 183 Fed. 347.

INTERIOR DEPARTMENT.

Vol. III, p. 536, sec. 439.

Authority to approve leases of Indian lands. - Under this section the Secretary of the Interior may delegate to the Assistant Secretary authority to approve leases of Indian lands and assignments thereof, and so long as such authority remains unrevoked the ap

Vol. III, p. 537, sec. 441.

Indians. — Under this section and sections 463, 2058, 2149, R. S., 3 Fed. Stat. Annot. 337, 349, 390, the Commissioner of Indian Affairs is authorized, with the approval of the Secretary of the Interior, to cause collectors to be excluded and removed from a tribal Indian reservation on days when payments are being made to the Indians, if in his judgment the presence of collectors therein at such times is detrimental to the peace and welfare of the Indians; and this although the reservation be within a state and the Indians be the holders, under trust patents issued to them pursuant to Act Feb. 8, 1887, ch. 119, 24 Stat. L. 388, 3 Fed. Stat. Annot. 494, of allotments adjacent to the reservation and,

proval of the Assistant Secretary is equiva lent to that of the Secretary. Turner v. Seep, (1909) 167 Fed. 646, modified on another point (1910) 179 Fed. 74, 102 C. C. A. 368.

therefore, citizens of the United States and the state. Rainbow v. Young, (1908) 161 Fed. 835, 88 C. C. A. 653.

For cases citing this section, see Cosmos Exploration Co. v. Gray Eagle Oil Co., (1903) 190 U. S. 309, 23 S. Ct. 692, 24 S. Ct. 860, 47 U. S. (L. ed.) 1064; U. S. v. Hitchcock, (1907) 205 U. S. 80, 27 S. Ct. 423, 51 U. S. (L. ed.) 718; U. S. v. Schliergolz, (1904) 133 Fed. 333; Buster v. Wright, (1905) 135 Fed. 947, 68 C. C. A. 505; U. S. v. Thurston County, (1906) 143 Fed. 287, 74 C. C. A. 425; Neff v. U. S., (C. C. A. 1908) 165 Fed. 273; Robinson v. Lundrigan, (C. C. A. 1910) 178 Fed. 230.

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Vol. III, p. 557, sec. 3140.

Applicability to agents of a state. - See under this title, vol. 3, p. 605, sec. 3232.

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Vol. III, p. 575, sec. 3169, cl. seventh.

Intent. On the trial of a government storekeeper and gauger at a distillery charged under this section with having negligently and designedly permitted a violation of the law by another person by leaving the door of a cistern room unlocked, in consequence of which distilled spirits were unlawfully removed therefrom, proof that the room was negligently left open or unlocked is sufficient

Vol. III, p. 584, sec. 3184.

Limitation of action. Under this section providing for the collection of delinquent internal revenue taxes, with a penalty of five per cent. thereon and interest at the rate of one per cent. a month, such interest is not a penalty, but is recoverable as interest, and the limitation of five years, prescribed by

to warrant a conviction, and it is not essential that it should have been with intent that the spirits should be removed. Mason r. U. S., (C. C. A. 1908) 162 Fed. 23.

Not applicable to Oleomargarine Act. — Schafer v. Craft, (1906) 144 Fed. 907; Grier r. Tucker, (1907) 150 Fed. 658; Craft v. Schafer, (C. C. A. 1907) 153 Fed. 175.

R. S. sec. 1047, 3 Fed. Stat. Annot. 100, 4 Fed. Stat. Annot. 865, for suits to recover penalties, does, not apply to a suit to recover such interest as a part of the debt. U. S. r. Guest, (C. C. A. 1906) 143 Fed. 456, affirmed 150 Fed. 121,

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Vol. III, p. 590, sec. 3199.

The deed is only prima facie evidence. Under this section providing that the collector's deed of sale of land for internal revenue taxes against the owner shall be prima facie evidence of the name of the person for whose taxes the land was sold, of the name of the purchaser, of the real estate purchased, and of the price paid, the deed is not prima facie evidence as to other recitals. Stewart v. Pergusson, (1903) 133 N. C. 276, 45 S. E. 585.

Proof of title under collector's deed. Rev. Stat. sec. 3182, 3 Fed. Stat. Annot. 583, requires the Commissioner of Internal Revenue to make assessments of all taxes under the Internal Revenue Act; section 3183, 3 Fed. Stat. Annot. 584, directs that returns by persons liable for taxes shall be made by a certain date; section 3188, 3 Fed. Stat. Annot. 586, provides that on failure to pay the taxes

Vol. III, p. 594, sec. 3213.

enacted by R. S. sec. 3207, 3 Fed. Stat. Annot. 592. Blacklock v. U. S., (1908) 208 U. S. 75, 28 S. Ct. 228, 52 U. S. (L. ed.) 396, affirming (1906) 41 Ct. Cl. 89.

official acts with respect to the property. A sale of property by a collector under a distraint warrant is clearly distinguishable from a sale of property seized and condemned in forfeiture proceedings for violation of the customs or internal revenue laws, and passes only the interest of the tax debtor. Sheridan r. Allen, (C. C. Á. 1907) 153 Fed. 568, modifying (1906) 145 Fed. 963.

the collector may levy or by warrant may authorize the deputy collector to levy on all property, except such as is exempt, belonging to the delinquent; and section 3197, 3 Fed. Stat. Annot. 589, requires the collector, on sale of property for taxes, to give the purchaser a certificate of purchase. It has been held that a purchaser claiming land under a sale for internal revenue taxes against the owner cannot sustain his title under a collector's deed where he fails to show, independently of the mere recitals in the records or in the deed, that a return was made by the person liable to be assessed, that the Commissioner of Internal Revenue had made the assessment, that a warrant of distraint had issued, or that a certificate of purchase had been given to him. Stewart . Pergusson, (1903) 133 N. C. 276, 45 S. E. 585.

Not applicable to Oleomargarine Act.-Grier v. Tucker, (1907) 150 Fed. 658.

Vol. III, p. 597, sec. 3220.

An allowance

Conclusiveness of award. by the Commissioner of Internal Revenue for the refund of a tax illegally collected is not the simple passing of an ordinary claim by an ordinary accounting officer, but an award upon which an action may be brought, and which is conclusive unless impeached for fraud or mistake. Edison Electric Illuminating Co. v. U. S., (1903) 38 Ct. Cl. 208.

Reconsideration of claim determined by Supreme Court. -In (1906) 25 Op. Atty.-Gen. 605, it was held that the Commissioner of Internal Revenue had no power, under this section, to reopen and allow the claim of a steamship company for taxes voluntarily paid under a mutual mistake of law, as the judg ment of the Supreme Court (200 U. S. 488, 26 S. Ct. 327, 50 U. S. (L. ed.) 569), in sustaining the ruling of the commissioner that the company had no legal claim against the

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Vol. III, p. 601, sec. 3226.

Effect of application to refund. - A written application to the Commissioner of Internal Revenue to refund a sum expended in the voluntary purchase of revenue stamps from a collector, to be affixed to a conveyance, though it may be sufficient to justify favorable action by the commissioner, under R. S. sec. 3220, 3 Fed. Stat. Annot. 597, is not the equivalent of an appeal to him from an adverse decision by the collector, which, under sections 32263228, is essential to the maintenance of a suit for the recovery of internal taxes alleged to have been erroneously or illegally assessed or collected. Chesebrough v. U. S., (1904) 192 U. S. 253, 24 S. Ct. 262, 48 U. S. (L. ed.) 432.

Remedy when claim rejected. If a claim is rejected by the commissioner a judicial remedy is given the party by an action against the collector. If the claim is allowed by the commissioner and payment refused by the accounting officers, a suit may be brought directly against the government in the Court of Claims. Edison Electric Illuminating Co. v. U. S., (1903) 38 Ct. Cl. 208.

Appeal as condition precedent. - The provision in this section that no suit shall be maintained to recover back any internal revenue tax claimed to have been illegally or erroneously collected until an appeal shall have been taken to the commissioner and a decision had therein, unless such decision shall have been delayed more than six months, is not merely a statute of limitations, but prescribes an absolute condition precedent, which is not waived by a failure to plead it, and without compliance with which a suit cannot be maintained; but where, before payment of the tax, a claim for its abatement was presented to the commissioner in accordance with the rules of the department, and

heritance tax on bequests which were not taxable, on his death the liability to refund was enforceable against his successor in office, it being the duty of the commissioner to pay any judgment rendered against the collector as provided by section 3220. Armour v. Roberts, (1907) 151 Fed. 846.

action by the government on a distiller's bond to recover the taxes thereon. Freeman r. U. S., (1907) 157 Fed. 195, 84 C. C. A. 643.

Spirits lost after seizure by an internal revenue officer, through the latter's mere negligence, were not lost by reason of "casualty" within this section. U. S. v. Sisk, (1910) 176 Fed. 885, 100 C. C. A. 355.

law to be had by paying the tax and bringing an action to recover it, and it being contrary to public policy to tie up the collection of taxes. Nye v. Washburn, (1903) 125 Fed. 817.

rejected, the same was equivalent to an appeal, and an appeal after payment on the same grounds was not necessary to authorize a suit. De Bary v. Dunne, (1908) 162 Fed. 961.

Where an appeal for a rebate of the tax, taken after its assessment, but before its payment, in accordance with the regulations of the department, has been adversely decided by the commissioner on the merits, a second appeal after payment of the tax is not required before bringing suit. Schwarzchild, etc., Co. v. Rucker, (1906) 143 Fed. 656.

Splitting causes of action. In Johnson r. Herold, (1907) 161 Fed. 593, it was held that a manufacturer of surgical supplies, which purchased internal revenue stamps from time to time under protest for use on articles made and sold by it, might maintain different actions against successive collectors to recover the amounts paid to each, and different aetions against the same collector, when required to prevent the bar of limitations, or when they related to different classes of articles, and the questions involved might be different, and that a recovery in one such suit was not a bar to the prosecution of the others pending, where no motion was made to consolidate.

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Duress. The purchase of documentary stamps at various times without protest, and the affixing of such stamps to manifests of cargoes on vessels bound to foreign ports, cannot be deemed to have been under duress, so as to sustain a recovery from the United States of the amount of the illegal tax so collected, because clearance papers for vessels so bound could not be procured without delivery to the collector of the district of the stamped manifests, without which clearance

papers the vessels would be prevented from sailing, or would be liable, under R. S. sec. 1197, 7 Fed. Stat. Annot. 45, for the penalty therein prescribed. U. S. v. New York, etc., Mail Steamship Co., (1906) 200 U. S. 488, 26 S. Ct. 327, 50 ̊ U. S. (L. ed.) 569, reversing (1903) 125 Fed. 320.

Assessment list as evidence. In the assessment of special taxes the officers of the internal revenue act in a quasi-judicial capacity, and in an action to recover such taxes the introduction in evidence of the assessment list, regular in form, makes a prima facie case for the government. Western Express Co. v. U. S., (1905) 141 Fed. 28, 72 C. C. A. 516.

Vol. III, p. 603, sec. 3227.

Effect of Act of March 3, 1887. Act of March 3, 1887, ch. 359, sec. 1, 24 Stat. L. 505, 2 Fed. Stat. Annot. 80, providing generally for the bringing of suits against the United States, and limiting such suits to six years after the right accrued, did not supersede R. S. secs. 3226, 3227. Christie-St. Commission Co. v. U. S., (1903) 126 Fed. 991; Christie-St. Commission Co. v. U. S., (1905) 136

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Proviso not compulsory. The proviso in this section is permissive only, and does not compel a claimant to bring suit within two years and six months after taking appeal in any case, but he may at his election await the decision of the commissioner, and, if adverse, bring suit within two years thereafter. Merck . Treat, (1909) 174 Fed. 388, 98 C. C. A. 606.

Limitations. Actions brought under this section are exclusively subject to the limitations imposed by this and the following section. Christie-St. Commission Co. v. U. S., (1904) 129 Fed. 506, affirming (1905) 136 Fed. 326, 69 C. C. A. 464.

Sufficiency of protest. See Johnson v. Herold, (1907) 161 Fed. 593.

Fed. 326, 69 C. C. A. 464, affirming (1904) 129 Fed. 506.

The running of the statute is not suspended during the pendency of the appeal before the Commissioner of Internal Revenue. ChristieSt. Commission Co. v. U. S., (1904) 129 Fed. 506, affirmed (1905) 136 Fed. 326, 69 C. C. A. 464.

two years. Christie-St. Commission Co. v. U. S., (1903) 126 Fed. 991; Christie-St. Commission Co. v. U. S., (1905) 136 Fed. 326, 69 C. C. A. 464, affirming (1904) 129 Fed. 506; Schwarzchild, etc., Co. v. Rucker, (1906) 143 Fed. 656.

sections 3232, 3244, 2040, under which an excise tax is to be collected from all sellers of intoxicating liquors. South Carolina v. U. S.. (1905) 199 U. S. 437, 26 S. Ct. 110, 50 U. S. (L. ed.) 261, affirming (1904) 39 Ct. Cl. 257.

purpose of showing that a particular person has paid the special taxes as a retail liquor dealer. Huckabee v. State, (1910) 7 Ga. App. 677, 67 S. E. 837. See also State v. Dowdy, (1907) 145 N. C. 432, 58 S. E. 1002.

to a customer at the latter's residence, though the sale be completed there. Benbrook t. U. S., (C. C. A. 1911) 186 Fed. 153.

the raising of revenue for the United States, the federal courts may properly, in the exercise of the powers vested in them, rigidly

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