
    MacCORKLE v. COMMISSIONER OF INTERNAL REVENUE.
    Circuit Court of Appeals, Fourth Circuit.
    May 5, 1928.
    No. 2690.
    Internal revenue <©=38(3) — Taxes held payable on dismissal of taxpayer’s petition before Board of Tax Appeals, without prejudice to suit to recover taxes so paid.
    Dismissal of taxpayer’s petition before Board of Tax Appeals, on motion of Commissioner of Internal Revenue, held not to preclude petitioner’s payment under protest of tax assessed, without prejudice to right to sue in District Court for its recovery.
    Petition to Review the Decision of the United States Board of Tax Appeals.
    Petition by W. A. MacCorkle against the Commissioner of Internal Revenue to review a decision of the United States Board of Tax Appeals adverse to petitioner.
    Decision of Board of Tax Appeals affirmed.
    Edgar J. Goodrich, of Charleston, W. Va. (T. S. Clark and Price, Smith & Spilman, all of Charleston, W. Va., on the brief), for petitioner.
    Howard T. Jones, Sp. Asst. Atty. Gen. (Mabel Walker Willebrandt, Asst. Atty. Gen., C. M. Charest, General Counsel Bureau of Internal Revenue, and L. W. Seott, Sp. Atty. Bureau of Internal Revenue, both of Washington, D. C., on the brief), for respondent.
    Before PARKER and NORTHCOTT, ' Circuit Judges, and GRONER, District Judge.
   PER CURIAM.

In the argument of the ease before this court it was stated by counsel representing the government that the dismissal of the petition before the Board of Tax Appeals, on motion of the Commissioner of Internal Revenue, did not in any way preclude or prevent the petitioner here from paying the tax assessed under protest without prejudice to his right to sue in the District Court, of the United States for the Southern District of West Virginia to recover the same. In this view this court concurs, and there is accordingly no reason to decide the technical questions presented; therefore the decision of the Board of Tax Appeals is affirmed, without costs.

Affirmed.  