
    JOHN F. MORAN, Receiver Park Savings Bank, v. THE DISTRICT OF COLUMBIA
    Law No. 84579
    Edward Clifford, H. H. Shinnick and M. W. Kriegh for plaintiff,
    E. Barrett Prettyman, Vernon E. West, and Chester H. Gray for defendant.
   MEMORANDUM ON DEMURRER TO AMENDED DECLARATION

ADKINS, J.

This is a suit to recover taxes paid by the Park Savings Bank to the District of Columbia in the years 1924 to 1933.

The bank was required to make a return each year of its earnings, and from that return the tax was assessed. The claim is that the executive officer of the bank fraudulently and deliberately made returns which would result in the payment of larger taxes than really were due.

It is claimed that these taxes were paid under a mistake of fact, and that therefore the bank is entitled to recover them back.

The allegation is that “by excessive valuation, erroneous computation, fraudulent evasion and criminal neglect” the tax returns misinformed the assessor and caused him to render erroneous assesments.

It is very doubtful to my mind whether this alleges payments made under mistake of fact; on the contrary it would appear that the executive officer knowingly made incorrect returns which he knew would result in the payment of larger taxes than were due.

This brings the case within the principle that a tax voluntarily paid may not be recovered back even though its payment might have been successfully resisted in the first instance. Chesebrough v. U. S., 192 U. S. 253; Bend v. Hoyt, 13 Pet. 263; Georgetown College v. D. C., 11 D. C. (MacArthur & Mackey) 43; see also 21 Ruling Case Law 167; 3 Cooley on Taxation (4th ed.) 2582.

Upon the allegations of the amended declaration therefore I think the demurrer must be sustained.

I do not undertake to decide whether a cause of action under Section 821 of Title 20 of the Code of 1929 can be stated; I decide merely that none is stated in the amended declaration.  