Under 28 U.S.C. § 1346(a)(1), a Federal District Court does not have jurisdiction of an action by a taxpayer for refund of a part payment made by him on an assessment for an alleged deficiency in his income tax. The taxpayer must pay the full amount of the assessment before he may challenge its validity in an action under §1346(a)(1). Flora v. United States, 357 U. S. 63, reaffirmed. Pp. 362 U. S. 146-177.
(a) The language of § 1346(a)(1) can more readily be construed to require payment of the full tax before suit than to permit suit for recovery of a part payment. Pp. 362 U. S. 148-151.
(b) The legislative history of § 1346(a)(1) is barren of any clue to the congressional intent on this issue; but that section is a jurisdictional provision which is a keystone in a carefully articulated and quite complicated structure of tax laws; since enactment of its precursor in 1921, Congress has several times acted upon the assumption that § 1346(a)(1) requires full payment before suit; and any evidence of a contrary intent is too weak and insubstantial to justify destroying the existing harmony of the tax statutes. Pp. 362 U. S. 151-158.
(c) In establishing the Board of Tax Appeals (now the Tax Court), Congress acted upon the assumption that full payment of the tax assessed was a condition precedent for bringing suit for refund in a District Court, and it chose to establish the Board as a different forum where the validity of an assessment could be litigated without prior payment in full. Pp. 362 U. S. 158-163.
(d) To permit such a suit in a District Court would be inconsistent with the purpose of § 405 of the Revenue Act of 1935, which amended the Declaratory Judgment Act so as to except disputes "with respect to Federal taxes." Pp. 362 U. S. 164-165.
(e) To permit such a suit in a District Court would generate the very problems which Congress believed it had solved by § 7422(e) of the Internal Revenue Code of 1954. Pp. 362 U. S. 165-167.
the otherwise uniform belief prior to 1940 that full payment had to precede suit in a District Court for refund. Pp. 362 U. S. 167-175.
(g) Requiring taxpayers to pay assessments in full before suing in a District Court will not necessarily subject them to undue hardships, since they may appeal to the Tax Court without first paying anything. Pp. 362 U. S. 175-177.
The question presented is whether a Federal District Court has jurisdiction under 28 U.S.C. § 1346(a)(1), of a suit by a taxpayer for the refund of income tax payments which did not discharge the entire amount of his assessment.
This is our second consideration of the case. In the 1957 Term, we decided that full payment of the assessment is a jurisdictional prerequisite to suit, 357 U. S. 357 U.S. 63. Subsequently the Court granted a petition for rehearing. 360 U.S. 922. The case has been exhaustively briefed and ably argued. After giving the problem our most careful attention, we have concluded that our original disposition of the case was correct.
disagreement, we deem it advisable to set forth our reasoning in some detail, even though this necessitates repeating much of what we have already said.
The question raised in this case has not only raised a conflict in the federal decisions, but has also in recent years provoked controversy among legal commentators. [Footnote 2] In view of this divergence of expert opinion, it would be surprising if the words of the statute inexorably dictated but a single reasonable conclusion. Nevertheless, one of the arguments which has been most strenuously urged is that the plain language of the statute precludes, or at the very least strongly militates against, a decision that full payment of the income tax assessment is a jurisdictional condition precedent to maintenance of a refund suit in a District Court. If this were true, presumably we could but recite the statute and enter judgment for petitioner -- though we might be pardoned some perplexity as to how such a simple matter could have caused so much confusion. Regrettably, this facile an approach will not serve.
without authority or any sum alleged to have been excessive or in any manner wrongfully collected under the internal revenue laws. . . ."
"sum," as a "percentum," or as "costs." [Footnote 4] Such a rendition of the statute, which is supported by precedent, [Footnote 5] frees the phrase "any internal revenue tax" from the qualifications imposed upon it by petitioner and permits it to be given what we regard as its more natural reading -- the full tax. Moreover, this construction, under which each phrase is assigned a distinct meaning, imputes to Congress a surer grammatical touch than does the alternative interpretation, under which the "any sum" phrase completely assimilates the other two. Surely a much clearer statute could have been written to authorize suits for refund of any part of a tax merely by use of the phrase "a tax or any portion thereof," or simply "any sum paid under the internal revenue laws." This Court naturally does not review congressional enactments as a panel of grammarians; but neither do we regard ordinary principles of English prose as irrelevant to a construction of those enactments. Cf. Commissioner v. Acker, 361 U. S. 87.
Although frequently the legislative history of a statute is the most fruitful source of instruction as to its proper interpretation, in this case, that history is barren of any clue to congressional intent.
The precursor of § 1346(a)(1) was § 1310(c) of the Revenue Act of 1921, [Footnote 7] in which the language with which we are here concerned appeared for the first time in a jurisdictional statute. Section 1310(c) had an overt purpose unrelated to the question whether full payment of an assessed tax was a jurisdictional prerequisite to a suit for refund. Prior to 1921, tax refund suits against the United States could be maintained in the District Courts under the authority of the Tucker Act, which had been passed in 1887. [Footnote 8] Where the claim exceeded $10,000, however, such a suit could not be brought, and in such a situation, the taxpayer's remedy in District Court was against the Collector.
Thus, there is presented a vexing situation -- statutory language which is inconclusive and legislative history which is irrelevant. This, of course, does not necessarily mean that § 1346(a)(1) expresses no congressional intent with respect to the issue before the Court; but it does make that intent uncommonly difficult to divine.
Act, be brought only against the Collector. Such a suit was based upon the common law count of assumpsit for money had and received, and the nature of that count requires the inference that a suit for recovery of part payment of a tax could have been maintained. Neither the Tucker Act nor the 1921 amendment indicates an intent to change the nature of the refund action in any pertinent respect. Consequently, there is no warrant for importing into § 1346(a)(1) a full payment requirement.
"So also, in the internal revenue department, the statute which we have copied allows appeals from the assessor to the commissioner of internal revenue; and, if dissatisfied with his decision, on paying the tax, the party can sue the collector; and, if the money was wrongfully exacted, the courts will give him relief by a judgment, which the United States pledges herself to pay."
". . . While a free course of remonstrance and appeal is allowed within the departments before the money is finally exacted, the general government has wisely made the payment of the tax claimed, whether of customs or of internal revenue, a condition precedent to a resort to the courts by the party against whom the tax is assessed. . . . If the compliance with this condition [that appeal must be made to the Commissioner and suit brought within six months of his decision] requires the party aggrieved to pay the money, he must do it. He cannot, after the decision is rendered against him, protract the time within which he can contest that decision in the courts by his own delay in paying the money. It is essential to the honor and orderly conduct of the Government that its taxes should be promptly paid and drawbacks speedily adjusted, and the rule prescribed in this class of cases is neither arbitrary nor unreasonable. . . ."
rest his case on that decision; or he can pay the amount claimed, and commence his suit at any time within that period. So, after the decision, he can pay at once, and commence suit within the six months. . . ."
opinions of this Court after Cheatham is consistent with the Cheatham statement; [Footnote 17] and, in any event, as we have indicated, we can see nothing in these additional words which would negate the full payment requirement.
If this were all the material relevant to a construction of § 1346(a)(1), determination of the issue at bar would be inordinately difficult. Favoring petitioner would be the theory that, in the early nineteenth century, a suit for recovery of part payment of an assessment could be maintained against the Collector, together with the absence of any conclusive evidence that Congress has ever intended to inaugurate a new rule; favoring respondent would be the Cheatham statement and the language of the 1921 statute. There are, however, additional factors which are dispositive.
is extremely weak, and we are convinced that it is entirely too insubstantial to justify destroying the existing harmony of the tax statutes. The laws which we consider especially pertinent are the statute establishing the Board of Tax Appeals (now the Tax Court), the Declaratory Judgment Act and § 7422(e) of the Internal Revenue Code of 1954.
his tax, bring suit for the recovery thereof, and thus secure a judicial determination on the questions involved, he cannot, in view of section 3224 of the Revised Statutes, which prohibits suits to enjoin the collection of taxes, secure such a determination prior to the payment of the tax. The right of appeal after payment of the tax is an incomplete remedy, and does little to remove the hardship occasioned by an incorrect assessment. The payment of a large additional tax on income received several years previous and which may have, since its receipt, been either wiped out by subsequent losses, invested in nonliquid assets, or spent, sometimes forces taxpayers into bankruptcy, and often causes great financial hardship and sacrifice. These results are not remedied by permitting the taxpayer to sue for the recovery of the tax after this payment. He is entitled to an appeal and to a determination of his liability for the tax prior to its payment. [Footnote 20]"
In sum, even assuming that one purpose of Congress in establishing the Board was to permit taxpayers to avoid distraint, it seems evident that another purpose was to furnish a forum where full payment of the assessment would not be a condition precedent to suit. The result is a system in which there is one tribunal for prepayment litigation and another for post-payment litigation, with no room contemplated for a hybrid of the type proposed by petitioner.
"Your committee has added an amendment making it clear that the Federal Declaratory Judgments Act of June 14, 1934, has no application to Federal taxes. The application of the Declaratory Judgments Act to taxes would constitute a radical departure from the long continued policy of Congress (as expressed in Rev.Stat. 3224 and other provisions) with respect to the determination, assessment, and collection of Federal taxes. Your committee believes that the orderly and prompt determination and collection of Federal taxes should not be interfered with by a procedure designed to facilitate the settlement of private controversies, and that existing procedure both in the Board of Tax Appeals and the courts affords ample remedies for the correction of tax errors. [Footnote 28]"
would have us give this Court's imprimatur to precisely the same type of "radical departure," since a suit for recovery of but a part of an assessment would determine the legality of the balance by operation of the principle of collateral estoppel. With respect to this unpaid portion, the taxpayer would be securing what is in effect -- even though not technically -- a declaratory judgment. The frustration of congressional intent which petitioner asks us to endorse could hardly be more glaring, for he has conceded that his argument leads logically to the conclusion that payment of even $1 on a large assessment entitles the taxpayer to sue -- a concession amply warranted by the obvious impracticality of any judicially created jurisdictional standard midway between full payment and any payment.
"there does not appear to be a single case before 1940 in which a taxpayer attempted a suit for refund of income taxes without paying the full amount the Government alleged to be due,"
reargument has, if anything, strengthened, rather than weakened, the substance of this statement, which was directed to the question whether there has been a consistent understanding of the "pay first and litigate later" principle by the interested government agencies and by the bar.
"None of the various tax acts provide for recourse to the courts by a taxpayer until he has failed to get relief from the proper administrative body or has paid all the taxes assessed against him. The payment of a part does not confer jurisdiction upon the courts. . . . There is no provision for refund to the taxpayer of any excess payment of any installment or part of his tax, if the whole tax for the year has not been paid."
raise the issue in the other three is obviously entirely without significance. Considerations of litigation strategy may have been thought to militate against resting upon such a defense in those cases. Moreover, where only nine lawsuits involving a particular issue arise over a period of many decades, the policy of the Executive Department on that issue can hardly be expected to become familiar to every government attorney. But, most important, the number of cases before 1940 in which the issue was present is simply so inconsequential that it reinforces the conclusion of the prior opinion with respect to the uniformity of the pre-1940 belief that full payment had to precede suit.
would be achieved would be a supposed harmony of § 1346(a)(1) with what might have been the nineteenth century law had the issue ever been raised. Reargument has but fortified our view that § 1346(a)(1), correctly construed, requires full payment of the assessment before an income tax refund suit can be maintained in a Federal District Court.
The decision of the Court of Appeals in Flora conflicted with Bushmiaer v. United States, 230 F.2d 146 (C.A. 8th Cir.). Cf. Coates v. United States, 111 F.2d 609 (C.A. 2d Cir.); Sirian Lamp Co. v. Manning, 123 F.2d 776 (C.A. 3d Cir.); Suhr v. United States, 18 F.2d 81 (C.A. 3d Cir.), semble.
As will appear later, prior to 1940, the general view was that full payment was a jurisdictional prerequisite. But a substantial difference of opinion arose after 1940, when the Court of Appeals for the Second Circuit decided Coates v. United States, 111 F.2d 609, against the Government. See Riordan, Must You Pay Full Tax Assessment Before Suing in the District Court? 8 J.Tax. 179; Beaman, When Not to Go to the Tax Court: Advantages and Procedures in Going to the District Court, 7 J.Tex. 356; Rudick and Wender, Federal Income Taxation, 32 N.Y.U.L.Rev. 751, 777-778; Note, 44 Calif.L.Rev. 956; Note, 2 How.L.J. 290.
See I.R.C. (1954), §§ 1(a), 1(b)(1), 68A Stat. 5, 6. The same general pattern has existed for many years. See, e.g., §§ 116, 117, of the Act of June 30, 1864, c. 173, 13 Stat. 281-282.
Revenue Act of 1924, c. 234, § 275(a), 43 Stat. 298; Revenue Act of 1918, c. 18, § 250(e), 40 Stat. 1084; Act of June 6, 1872, c. 315, § 21, 17 Stat. 246; Act of June 30, 1864, c. 173, § 119, 13 Stat. 283. See also Helvering v. Mitchell, 303 U. S. 391, 303 U. S. 405.
Lower courts have given this construction to the same three phrases in certain "claim for refund" and limitations provisions in prior tax statutes. United States v. Magoon, 77 F.2d 804; Union Trust Co. v. United States, 5 F.Supp. 259, 261 ("The natural definition of "tax" comprehends one "assessment" or one tax in the entire amount of liability"), affirmed, 70 F.2d 629, 630 ("We agree with the District Court that "tax," "penalty," and "sum" refer to distinct categories of illegal collections and "tax" includes the entire tax liability as assessed by the Commissioner"); United States v. Clarke, 69 F.2d 748; Hills v. United States, 50 F.2d 302, 73 Ct.Cl. 128; 55 F.2d 1001, 73 Ct.Cl. 128; cf. Blair v. Birkenstock, 271 U. S. 348.
In the prior opinion, we stated that, were it not for certain countervailing considerations, the statutory language "might . . . be termed a clear authorization" to sue for the refund of part payment of an assessment. 357 U.S. at 357 U. S. 65. It is quite obvious that we did not regard the language as clear enough to preclude deciding the case on other grounds. Moreover, it could at that time be assumed that the terms of the statute favored the taxpayer, because eight members of the Court considered the extrinsic evidence alone sufficient to decide the case against him. Although we are still of that opinion, we now state our views with regard to the bare words of the statute because the argument that these words are decisively against the Government has been urged so strenuously.
24 Stat. 505, as amended, 28 U.S.C. §§ 1346, 1491. See United States v. Emery, Bird, Thayer Realty Co., 237 U. S. 28.
Smietanka v. Indiana Steel Co., 257 U. S. 1.
See H.R.Conf.Rep. No. 486, 67th Cong., 1st Sess. 57; remarks of Senator Jones, 61 Cong.Rec. 7506-7507. Another amendment was added in 1925 giving the right to bring refund suits against the United States where the Collector was out of office. 43 Stat. 972. And, in 1954, both the $10,000 limitation and the limitation with respect to the Collector's being dead or out of office were eliminated. 68 Stat. 589.
The text of R.S. § 3226 is set forth in note 16 infra, together with a more detailed account of the origin and development of the pertinent statutory language. The successor of R.S. § 3226 is I.R.C. (1954), § 7422(a), 68A Stat. 876.
See Cary v. Curtis, 3 How. 236.
E.g., Act of Feb. 26, 1845, c. 22, 5 Stat. 727; Act of Mar. 3, 1863, c. 74, 12 Stat. 729; Act of June 30, 1864, c. 173, § 44, 13 Stat. 239-240.
Cheatham was decided in O.T. 1875, while the phrases in question were added to the statute on June 6, 1872. See note 16 infra, for a discussion of the statute involved in Cheatham and its amendment.
"Sec. 19. . . . [N]o suit shall be maintained in any court for the recovery of any tax alleged to have been erroneously or illegally assessed or collected, until appeal shall have been duly made to the Commissioner of Internal Revenue. . . ."
"Sec. 44. That all suits and proceedings for the recovery of any internal tax alleged to have been erroneously assessed or collected, or any penalty claimed to have been collected without authority, or for any sum which it is alleged was excessive, or in any manner wrongfully collected, shall be brought within two years next after the cause of action accrued and not after; and all claims for the refunding of any internal tax or penalty shall be presented to the Commissioner of Internal Revenue within two years next after the cause of action accrued, and not after. . . ."
"A careful reading of this statute discloses the absurd result which would flow from construing the addition of the 'any sum' language to affect the full payment rule, which, under this argument, would be based upon the 'any tax' phrase in the 1866 statute. That is, since the 'any sum' phrase occurs only in the statute of limitations portion of the 1872 statute, and not in the 'claim for refund' provision, a person would be able to bring a suit for part payment without filing a claim for refund."
"Sec. 3226. No suit shall be maintained in any court for the recovery of any internal tax alleged to have been erroneously or illegally assessed or collected, or of any penalty claimed to have been collected without authority, or of any sum alleged to have been excessive or in any manner wrongfully collected, until appeal shall have been duly made to the Commissioner of . . . Internal Revenue. . . ."
It is no doubt true, as petitioner says, that these various amendments were designed to require submission of all litigable claims to the Commissioner; but, as we have explained, this indicates no more than an intent to cover taxes, penalties, and sums which might, strictly speaking, be neither taxes nor penalties.
Kings County Savings Institution v. Blair, 116 U. S. 200, 116 U. S. 205 (1886) ("No claim for the refunding of taxes can be made according to law and the regulations until after the taxes have been paid. . . . [N]o suit can be maintained for taxes illegally collected, unless a claim therefor has been made within the time prescribed by the law"); Pollock v. Farmers' Loan & Trust Co., 157 U. S. 429, 157 U. S. 609 (1895) (dissenting opinion) ("The same authorities [including the Cheatham case] have established the rule that the proper course, in a case of illegal taxation, is to pay the tax under protest or with notice of suit, and then bring an action against the officer who collected it"); Bailey v. George, 259 U. S. 16, 259 U. S. 20 (1922) ("They might have paid the amount assessed under protest and then brought suit against the collector. . . ."). This view of Cheatham also corresponds to that of the Court of Appeals in this case. 246 F.2d at 930. See also Bushmiaer v. United States, 230 F.2d 146, 152-155 (dissenting opinion).
I.R.C. (1954), § 6331, 68A Stat. 783. The Government has possessed the power of distraint for almost 170 years. See Act of Mar. 3, 1791, c. 15, § 23, 1 Stat. 204.
H.R.Rep. No. 179, 68th Cong., 1st Sess. 7. The Senate Committee on Finance filed a similar report. S.Rep. No. 398, 68th Cong., 1st Sess. 8.
The reference to R.S. § 3224 in the House Report clearly was meant simply to demonstrate that a determination prior to payment be way of an injunction suit was not possible because of the statutory bar to such a suit. This anti-injunction provision has been law for many decades. See Act of Mar. 2, 1867, c. 169, § 10, 14 Stat. 475. It is now § 7421 of the Internal Revenue Code of 1954, 68A Stat. 876.
See 65 Cong.Rec. 2621, 2684, 8110; 67 Cong.Rec. 525, 1144, 3529, 3755.
"Mr. FLETCHER. . . . I think the most important right that is preserved here . . . is the right to go into the district court by the taxpayer upon the payment of the tax. I do not think that we ought to allow him to do that unless he does pay the tax; but when he pays the tax, his right to go into the district court is preserved."
See also the materials quoted in note 24 infra.
See I.R.C. (1954), § 6213(a), 68A Stat. 771. For the pertinent 1924 legislation, see Revenue Act of 1924, c. 234, § 274, 43 Stat. 297.
"was created by Congress to provide taxpayers an opportunity to secure an independent review . . . in advance of their paying the tax found by the Commissioner to be due. Before the act of 1924, the taxpayer could only contest the Commissioner's determination of the amount of the tax after its payment."
There are a few interchanges among Senators which might be construed to indicate that they were thinking in terms of preventing distraint, but the same passages demonstrate even more clearly that these Senators also intended to eliminate the necessity of full payment as a prerequisite to suit. For example, the following debate occurred when Senator Reed, who was a member of the Committee on Finance, proposed an amendment which would have a permitted a taxpayer to refuse to pay the deficiency even after the Board had ruled against him and which would have required the Government to sue in a District Court.
"Mr. REED of Missouri. . . ."
"The practice, as I understand it, has been to require the taxpayer to pay in the amount of the increased assessment, and then to allow him to get it back, if he can. In addition to this, distraints frequently have been issued seizing the property of the citizen. . . ."
"Mr. SWANSON. What are the processes by which a citizen who has overpaid can get back his money under the existing law?"
"Mr. REED of Missouri. As I understand it, he pays his tax. Then he makes an application for a return of it. That is heard through the long, troublesome processes which exist. . . . When the Treasury is satisfied . . . the taxpayer can go into court at that time. In the meantime, however, he has had to pay his money."
"Mr. SWANSON. Does the Senator mean that, if there is a dispute, the tax is not assessed permanently against him until the board reaches its final decision?"
"Mr. SMOOT. Until the board of appeals finally passes upon it, and after that, if he wants to go to court, he can do so, but, in order to go to court, he must pay his assessment."
"Mr. REED of Missouri. He must pay it before he can have a trial in court."
"Mr. WALSH of Montana. Mr. President, the hardships . . . in connection with the collection of these taxes is a very real one. . . . At least two or three instances have come under my notice, and my assistance has been asked in cases where the assessing officers have . . . assessed against the [taxpayer] delinquent taxes of such an amount that he found it impossible to pay in advance and secure redress through the ordinary proceeding in a court of law, simply because it would bankrupt him to endeavor to raise the money. He was therefore obliged to suffer a distraint. . . ."
". . . After the board of review determines the matter, it seems to me, that is as far as the Government ought to be interrupted in the matter of the collection of its revenues. Then the taxpayer would be obliged to pay the tax and take his ordinary action at law to recover whatever he claims was exacted of him illegally."
A somewhat similar exchange occurred during the 1926 debate over a proposal to prohibit refund suits where an appeal had been taken to the Board.
"Mr. REED of Missouri. . . . Now, just one further question:"
"Why is it that a taxpayer can not be given his day in court by direct action, without first requiring him to pay the tax that is assessed? I know I shall be met with the statement that it would mean interminable delay to the Government, but it frequently happens that the tax that is assessed is ruinous, and that the taxpayer can not raise the money. . . ."
"In my own personal experience, I have had two clients who were absolutely ruined by assessments that were unjust and that could not have stood up in a court of justice. . . . [A]nd it was no protection to them to say, 'Pay your taxes and then go into court,' because they did not have the money to pay the taxes, and could not raise the money to pay the taxes and be out of the money two or three years."
". . . I think the bill needs just one more amendment in this particular, and that is a provision that any citizen can go into court without paying any tax and resist the payment. In the meantime, I agree that the Government, for its own protection, ought to be allowed, perhaps, in such a case as that, to issue a distraint. But the idea that a man must first pay his money and then sue to get it back is anomaly in the law."
"Does the Senator not think that other provision in the bill which permits the taxpayer to take his case to the district court -- conditioned, of course, upon his paying the assessment -- meets the situation?"
S. 1569, 81st Cong., 1st Sess.; S. 384, 82d Cong., 1st Sess.; H.R. 150 and H.R. 246, 83d Cong., 1st Sess.
48 Stat. 955, as amended, 28 U.S.C. §§ 2201, 2202.
"Should the Declaratory Judgment Act be held to apply to tax cases, it will mean a complete reversal of our present scheme of taxation. The principle of 'pay first and litigate later' will be changed to 'litigate first and pay later.' This principle has never before been departed from."
Wideman, Application of the Declaratory Judgment Act to Tax Suits, 13 Taxes 539, 540.
For some practitioners' views on the desirability of litigating tax cases in Federal District Courts, see Dockery, Refund Suits in District Courts, 31 Taxes 523; Yeatman, Tax Controversies, 10 Tex.B.J. 9.
These problems have already occurred to the bar. See Riordan, Must You Pay Full Tax Assessment Before Suing in the District Court? 8 J.Tax. 179, 181.
"Sec. 7422. CIVIL ACTIONS FOR REFUND."
"(e) STAY OF PROCEEDINGS. -- If the Secretary or his delegate prior to the hearing of a suit brought by a taxpayer in a district court or the Court of Claims for the recovery of any income tax, estate tax, or gift tax (or any penalty relating to such taxes) mails to the taxpayer a notice that a deficiency has been determined in respect of the tax which is the subject matter of taxpayer's suit, the proceedings in taxpayer's suit shall be stayed during the period of time in which the taxpayer may file a petition with the Tax Court for a redetermination of the asserted deficiency, and for 60 days thereafter. If the taxpayer files a petition with the Tax Court, the district court or the Court of Claims, as the case may be, shall lose jurisdiction of taxpayer's suit to whatever extent jurisdiction is acquired by the Tax Court of the subject matter of taxpayer's suit for refund. If the taxpayer does not file a petition with the Tax Court for a redetermination of the asserted deficiency, the United States may counterclaim in the taxpayer's suit, or intervene in the event of a suit as described in subsection (c) (relating to suits against officers or employees of the United States), within the period of the stay of proceedings notwithstanding that the time for such pleading may have otherwise expired. The taxpayer shall have the burden of proof with respect to the issues raised by such counterclaim or intervention of the United States except as to the issue of whether the taxpayer has been guilty of fraud with intent to evade tax. This subsection shall not apply to a suit by a taxpayer which, prior to the date of enactment of this title, is commenced, instituted, or pending in a district court or the Court of Claims for the recovery of any income tax, estate tax, or gift tax (or any penalty relating to such taxes)."
The possibility of dual jurisdiction in this type of situation was confirmed by cases such as Camp v. United States, 44 F.2d 126, and Ohio Steel Foundary Co. v. United States, 38 F.2d 144, 69 Ct.Cl. 158. See H.R.Rep. No. 1337, 83d Cong., 2d Sess. 109, A431; S.Rep. No. 1662, 83d Cong., 2d Sess. 148, 610.
For additional evidence of recent congressional understanding of the jurisdictional requirement of § 1346(a)(1), see the House Report which explained the 1954 amendment abolishing the $10,000 limitation on tax suits against the United States, 68 Stat. 589. After explaining the taxpayer's right to contest a deficiency in the Tax Court, the report states: "The taxpayer may, however, elect to pay his tax and thereafter bring suit to recover the amount claimed to have been illegally exacted." H.R.Rep. No. 659, 83d Cong., 1st Sess. 2.
Petitioner cites two earlier cases in which the Government failed to raise the jurisdictional issue. Bowers v. Kerbaugh-Empire Co., 271 U. S. 170 (1926); Cook v. Tait, 265 U. S. 47 (1924). The Government distinguishes these cases on the ground that, although the total tax for the year had not been paid, the full amount due at the time of suit had been paid. This situation occurred because, under § 250(a) of the Revenue Act of 1921, c. 136, 42 Stat. 264, the tax was paid in four installments, and the plaintiffs in Cook and Bowers apparently had paid the due installments. While we do not suggest that the statute will support this type of distinction, adoption of it by the Government or by the bar would not in any way impair the substantial consistency of the view that full payment has for many decades been a prerequisite to suit in District Court. An error as to the applicability of a principle to a unique factual situation does not mean that the principle itself has been rejected.
The ground for the decision may have been that the District Court had no jurisdiction because the taxpayer was contesting the legality of the balance of the assessment before the Board of Tax Appeals.
In welcoming the members of the Board of Tax Appeals on July 16, 1924, Under Secretary Winston described the difficulties which had arisen in the past.
". . . Under the law, a tax, once assessed, had to be paid by the taxpayer, and then his remedy was to sue for its recovery. He must first find the cash for a liability for which he may not have provided. . . . The first interest of all of the people is, of course, that the Government continue to function, and, to do this, it must have the means of prompt collection of the necessary supplies to keep it going, that is, taxes. The method was, therefore, the determination by the Commissioner of the amount of tax due, its collection and suit to recover. . . . [T]he tax as assessed had to be paid, and the taxpayer was left to his remedy in the courts. The payment of the tax was often a great hardship on the taxpayer, meaning in general that he had to raise the cash for an unexpected liability which might not be lawfully due."
Treas. Dept. Press Release, July 16, 1924. See also remarks by Under Secretary Winston in addressing the Seventeenth Annual Conference of the National Tax Association in September 1924, Proceedings of Seventeenth National Conference 271.
"The taxpayer, in the event that decision [of the Board] is against him, will have to pay the tax according to the assessment and have recourse to the courts. . . ."
"Prior to the enactment of the Act of 1924 . . . , [i]f the decision on the appeal [to the Commissioner] was in favor of the government, the taxpayer, only after payment of the tax, had the right to protest the correctness of the decision in the courts. . . ."
One of the clearest statements of the rule by a commentator is to be found in Bickford, Court Procedure in Federal Tax Cases (Rev. ed. 1929) 3, 7-8, 9, 119.
"There are, however, certain other conditions which must be complied with before a suit is maintainable under this section. Briefly stated, these are as follows:"
"1. The tax must have been paid."
"2. After payment, the taxpayer must have filed with the Commissioner . . . a sufficient claim for the refund of the taxes sued for."
"The first requirement is obvious. We have, in the preceding portions of this volume, found that a proceeding commenced in the Board of Tax Appeals is the only exception to the rule that no review by the courts is permissible at common law or under the statutes, until the tax has been paid and the Government assured of its revenue."
See also Hamel, The United States Board of Tax Appeals (1926), 10; Klein, Federal Income Taxation (1929), 1372, 1642, 1643; Mellon, Taxation: The People's Business (1924), 62-63; Ballantine, Federal Income Tax Procedure, Lectures on Taxation, Columbia University Symposium (1932), 179, 192-193; Caspers, Assessment of Additional Income Taxes for Prior Years, 1 Nat. Income Tax Mag. (Oct. 1923), 12; Graupner, The Operation of the Board of Tax Appeals, 3 Nat. Income Tax Mag. (1925), 295. But see Smith, National Taxes, Their Collection, and Rights and Remedies of the Taxpayer, 8 Geo.L.J. 1, 3 (Apr. 1920).
(a) A number of them, although cited by petitioner in his petition for rehearing, were later conceded by him, after his examination of government files, not to be in point.
(b) A number of the cited cases involved excise taxes. The Government suggests -- and we agree -- that excise tax deficiencies may be divisible into a tax on each transaction or event, and therefore present an entirely different problem with respect to the full payment rule.
(c) The cases arising after 1940 are insignificant. Once the Second Circuit Court of Appeals had ruled against the Government in Coates, taxpayers would naturally be much more inclined to sue before full payment, and the Government might well decide not to raise the objection in a particular case for reasons relating to litigation strategy.
(d) In some of the cases, the only amount remaining unpaid at the time of suit was interest. As we have indicated, the statute lends itself to a construction which would permit suit for the tax after full payment thereof without payment of any part of the interest.
(e) In some of the cases, the Government was not legally entitled to collect the unpaid tax at the time of suit, either because the tax system at the time permitted installment payment (see note 34 supra), because the unpaid portion had not yet been assessed, or for some other reason. Although the statute may not support any distinction based on facts of this nature, it is quite understandable that a taxpayer might have predicated a suit upon the theory that the distinction was meaningful, and that the Government might not have contested it, whether because it agreed or for tactical reasons.
In the light of these considerations, we regard the following pre-1941 cases as immaterial: Baldwin v. Higgins, 100 F.2d 405 (C.A. 2d Cir. 1938) (petitioner concedes); Sampson v. Welch, 23 F.Supp. 271 ( D.C.S.D.Cal.1938) (same); Charleston Lumber Co. v. United States, 20 F.Supp. 83 (D.C.S.D.W.Va.1937) (same); Sterling v. Ham, 3 F.Supp. 386 (D.C.Me.1933) (same); Farmers' Loan & Trust Co. v. Bowers, 15 F.2d 706 (D.C.S.D.N.Y.1926), modified, 22 F.2d 464 (1927), reversed, 29 F.2d 14 (C.A. 2d Cir. 1928) (same); Heinemann Chemical Co. v. Heiner, 36-4 CCH Fed.Tax Serv. ¦ 9302 (D.C.W.D.Pa.1936), reversed, 92 F.2d 344 (C.A. 3d Cir. 1937) (only interest unpaid); Welch v. Hassett, 15 F.Supp. 692 (D.C.Mass.1936), reversed, 90 F.2d 833 (C.A. 1st Cir. 1937), aff'd, 303 U. S. 303 (1938) (full assessment paid); Leavitt v. Hendricksen, 37-4 CCH Fed.Tax Serv. ¦ 9312 (D.C.W.D.Wash.1937) (no unpaid assessment); Bowers v. Kerbaugh-Empire Co., 271 U. S. 170 (1926) (all due installments paid); Cook v. Tait, 265 U. S. 47 (1924) (same).
Four pre-1941 cases remain. Of these, only two are clearly cases in which the jurisdictional issue was present and not raised by the Government. Tsivoglou v. United States, 31 F.2d 706 (C.A. 1st Cir. 1929); Thomas v. United States, 85 Ct.Cl. 313, 18 F.Supp. 942 (1937); McFadden v. United States, 20 F.Supp. 625 (D.C.E.D.Pa.1937), is in the "doubtful" category. There, the Commissioner had granted the taxpayer an extension of time for payment of 80% of his assessment, and the suit was for the remaining 20%, which had been paid. The relevant facts of the last case, Peerless Paper Box Mfg. Co. v. Routzahn, 22 F.2d 459 (D.C.N.D.Ohio 1927), are so unclear that the case means nothing. The Government had applied an admitted 1918 overpayment to a 1917 deficiency, but the deficiency was greater than the overpayment. The taxpayer sued to recover this overpayment, and whether there had been full payment at the time of suit depends upon whether the suit is regarded as one for refund of 1917 or 1918 taxes.
Nor can we agree entirely with petitioner's evaluation of a second group of pre-1941 cases -- those in which the issue allegedly was present and the Government did raise it, but lost. Five of these cases involved primarily the troublesome concurrent jurisdiction problem that arose before passage of § 7422(e) of the 1954 Code when a taxpayer both appealed to the Tax Court and brought suit in a Federal District Court. Brampton Woolen Co. v. Field, 55 F.2d 325 (D.C.N.H.1931), reversed, 56 F.2d 23 (C.A. 1st Cir. 1932), certiorari denied, 287 U.S. 608; Camp v. United States, 44 F.2d 126 (C.A. 4th. Cir. 1940); Emery v. United States, 27 F.2d 992 (D.C.W.D.Pa.1928); Old Colony R. Co. v. United States, 27 F.2d 994 (D.C.Mass.1928); Ohio Steel Foundry Co. v. United States, 69 Ct.Cl. 158, 38 F.2d 144 (1930). In all of these cases except Camp, it appears that the Government did raise the part payment question. It is true that the contention did not prevail, but this is not very meaningful. In the first place, this question was quite subordinate to the major issue, concurrent jurisdiction. In the second place, the Government won in Brampton on another jurisdictional ground. And finally, in contrast to Flora, in both Camp and Ohio Steel Foundry, the full assessment had been paid at the time suit was brought; it was only later that an additional deficiency was asserted by the Commissioner.
To these cases should be added Riverside Hospital v. Larson, 38-4 CCH Fed.Tax Serv. ¦ 9542 (D.C.S.D.Fla.1938), where the Government raised the full payment question and won, and Suhr v. United States, 14 F.2d 227 (D.C.W.D.Pa.1926), aff'd, 18 F.2d 81 (C.A. 3d Cir. 1927), another concurrent jurisdiction case where the Government raised the issue and won, although the grounds for the decision are not entirely clear.
This, then, is how we see the pre-1941 situation: of 14 cases originally cited as being cases in which the jurisdictional issue was present but not raised by the Government, five have been conceded by petitioner not to be in point; six, and possibly seven, are distinguishable for various reasons; and only two, or possibly three, remain. Of five cases cited as being cases in which the jurisdictional issue was raised by the Government, only one, Coates v. United States, 111 F.2d 609 (C.A. 2d Cir. 1940), or at most three, really involved the Flora question. When to these are added Riverside, where the Government won, Suhr, where it may have won, and Bramptpon Woolen Co., where it won in the Court of Appeals on another jurisdictional ground, the box score is as follows: two or three cases in which the Government failed to raise the issue; one, or possibly three, cases in which the Government argued the question and lost; one case in which it argued the question and won; one case in which it argued the question and may have won; and one case in which it raised the issue and prevailed on another jurisdictional defense -- a total of nine cases, at most, in which the issue was presented, out of which the Government contested jurisdiction in six. Of course, this calculation may not be precise; but, in view of the many thousands of tax refund suits which have been brought during the decades in question, it is an accurate enough approximation to reflect a general understanding of the jurisdictional significance of "pay first, litigate later."
It would be bootless to consider each of the post-1940 cases cited by petitioner or to list the multitude of cases cited by the Government in which the jurisdictional issue has been raised. As we have stated, we believe these cases have no significance whatsoever. However, perhaps it is worth noting that all but a handful of the cases which petitioner, in the petition for rehearing, asserted to be ones in which the Government failed to raise the jurisdictional issue would be immaterial even if they were pre-Coates. Thus, for example, petitioner has conceded error with respect to three cases. Dickstein v. McDonald, 149 F.Supp. 580 (D.C.M.D.Pa.1957), aff'd, 255 F.2d 640 (C.A. 3d Cir. 1958); O'Connor v. United States, 76 F.Supp. 962 (D.C.S.D.N.Y.1948); Terrell v. United States, 64 F.Supp. 418 (D.C.E.D.La.1946). A number of the cases involved excise taxes. E.g., Griffiths Dairy v. Squire, 138 F.2d 758 (C.A. 9th Cir. 1943); Auricchio v. United States, 49 F.Supp. 184 (D.C.E.D.N.Y.1943). In some of the cases, only interest remained unpaid. Raymond v. United States, 58-1 U.S.T.C. ¦ 9397 (D.C.E.D.Mich.1958); Hogg v. Allen, 105 F.Supp. 12 (D.C.M.D.Ga.1952). And some of the cases arose in the Third Circuit after a decision adverse to the Government in Sirian Lamp Co. v. Manning, 123 F.2d 776 (C.A. 3d Cir. 1941). Gallagher v. Smith, 223 F.2d 218 (C.A. 3d Cir. 1955); Peters v. Smith, 123 F.Supp. 711 (D.C.E.D.Pa.1954), rev'd, 221 F.2d 721 (C.A. 3d Cir. 1955). It might be noted also that Jones v. Fox, 162 F.Supp. 449 (D.C.Md.1957), cited as a case in which the Government argued the jurisdictional question and lost, was an excise tax case in which the court distinguished our prior decision in Flora because of the divisibility of the excise tax. Another such decision during the pre-1941 period was Friebele v. United States, 20 F.Supp. 492 (D.C.N.J.1937).
Petitioner points out that the Tax Court has no jurisdiction over excise tax cases. See 9 Mertens, Law of Federal Income Taxation (Zimet Rev.1958), § 50.08. But this fact provides no policy support for his position, since, as we have noted, excise tax assessments may be divisible into a tax on each transaction or event, so that the full payment rule would probably require no more than payment of a small amount. See note 37 supra.
Of this $446,673,640, District Court suits involved $222,177,920; Court of Claims suits, $220,247,436; and state court suits, $4,248,284.
"Permitting refund suits after partial payment of the tax assessment would benefit many taxpayers. Such a law would be open to wide abuse, and would probably seriously impair the government's ability to collect taxes. Many taxpayers, without legitimate grounds for contesting an assessment, would make a token payment and sue for refund, hoping at least to reduce the amount they would ultimately have to pay. In jurisdictions where the District Court is considered to be a 'taxpayer's court,' most taxpayers would use that forum instead of the Tax Court. Conceivably such legislation could cause the chaotic tax collection situations which exist in some European countries, since there would be strong impetus to a policy of paying a little and trying to settle the balance."
See Helvering v. Mitchell, 303 U. S. 391, 303 U. S. 399; Treas.Regs. on Procedural Rules (1954 Code) § 601.103(a).
"1. If the Government is forced to use these remedies [distraint] on a large scale, it will affect adversely taxpayers' willingness to perform under our voluntary assessment system."
"2. It will put the burden on the Government to seek out for seizure the property of every taxpayer who chooses to sue for the refund of a partial payment. Often, the Government will not be able to do this without extraordinary and costly effort, and, in some cases, it may not be able to do it at all."
"3. The use of the drastic collection remedies would often cause inconvenience and perhaps hardship to the creditors, debtors, employers, employees, banks and other persons doing business with the taxpayer."
I should like to append a word to my Brother WHITTAKER's opinion, with which I entirely agree.
practice, unless a statute leaves no admissible opening for administrative construction.
"there does not appear to be a single case before 1940 in which a taxpayer attempted a suit for refund of income taxes without paying the full amount the Government alleged to be due"
(357 U.S. 63 at 357 U. S. 69), I deemed such a long continued, unbroken practical construction of the statute controlling as to the meaning of the Revenue Act of 1921, now 28 U.S.C. § 1346(a)(1). Once the basis which for me governed the disposition of the case was no longer available, I was thrown back to an independent inquiry of the course of tax legislation and litigation for more than a hundred years, for all of that was relevant to a true understanding of the problem presented by this case. This involved many weeks of study during what is called the summer vacation. Such a study led to the conclusion set forth in detail in the opinion of my Brother WHITTAKER.
MR. JUSTICE WHITTAKER, with whom MR. JUSTICE FRANKFURTER, MR. JUSTICE HARLAN, and MR. JUSTICE STEWART join, dissenting.
A deep and abiding conviction that the Court today departs from the plain direction of Congress expressed in 28 U.S.C. § 1346(a), defeats its beneficent purpose, and repudiates many soundly reasoned opinions of the federal courts on the question presented, compels me to express and explain my disagreement in detail.
character, and proposed, by his 90-day letter, the assessment of a deficiency in the amount of $27,251.13, plus interest. Petitioner did not petition the Tax Court for a redetermination of the proposed deficiency, and the Commissioner assessed it on March 27, 1953. In April and June, 1953, petitioner paid to the Commissioner a total of $5,058.54 upon the assessment, and timely thereafter filed a claim for refund of that sum. The claim was rejected on July 13, 1955, and, on August 3, 1956, petitioner brought this action against the United States in the District Court for Wyoming to recover the amount paid, alleging, inter alia, that said sum "has been illegally and unlawfully collected" from him, and he prayed judgment therefor with interest from the date of payment.
At the trial, the Government prevailed on the merits, 142 F.Supp. 602, but the Court of Appeals, without reaching the merits, remanded with directions to dismiss, holding that because the petitioner had not paid the entire amount of the assessment, the District Court had no jurisdiction of the action. 246 F.2d 929. We granted certiorari and, after hearing, affirmed the judgment of the Court of Appeals. 357 U. S. 357 U.S. 63. On June 22, 1959, we granted a petition for rehearing and restored the case to the docket. 360 U.S. 922. It has since been rebriefed, reargued and again submitted.
The case is now presented in a very different posture than before, as certain vital contentions that were previously made are now conceded to have been erroneous.
The question presented is whether a Federal District Court has jurisdiction of an action by a taxpayer against the United States to recover payments made to the Commissioner upon, but which discharged less than the entire amount of, an illegal assessment.
"The district courts shall have original jurisdiction, concurrent with the Court of Claims, of:"
"(1) Any civil action against the United States for the recovery of any internal revenue tax alleged to have been erroneously or illegally assessed or collected, or any penalty claimed to have been collected without authority or any sum alleged to have been excessive or in any manner wrongfully collected under the internal revenue laws."
In its former opinion, the Court recognized that the words of the statute might "be termed a clear authorization to sue for the refund of any sum,'" 357 U.S. at 357 U. S. 65, but it concluded that Congress had left room in the statute for an implication that the waiver of immunity and grant of jurisdiction applied only to refund suits in which the entire amounts of assessments had been paid. Advocating the existence of that implication, the Government contended and urged that, from the time of the decision in Cheatham v. United States, 92 U. S. 85, in 1875 until the decision in Coates v. United States, 111 F.2d 609 (C.A. 2d Cir.), in 1940, there was an unquestioned understanding and uniform practice that full payment of an assessment was a condition upon the right to sue for refund, and, finding what it then accepted as adequate support for that contention, the Court was persuaded that, since no subsequent statute had purported to change it, such unquestioned understanding so long and uniformly applied was still effective.
"there does not appear to be a single case before 1940 in which a taxpayer attempted a suit for refund of income taxes without paying the full amount the Government alleged to be due."
357 U.S. at 357 U. S. 69.
a conclusion that there ever was an unquestioned understanding and uniform practice that full payment of an assessed deficiency was a condition upon the jurisdiction of a District Court to entertain a suit for refund.
In the light of the foregoing, it is clear that nothing in Cheatham v. United States, supra, fairly may be said to hold that full payment of an illegally assessed deficiency is a condition upon the jurisdiction of a District Court to entertain a suit for refund. No such issue was involved in that case. There, the assessment had been fully paid, and the only issue was whether a proper claim for refund was a condition precedent to the maintenance of a suit to recover the amount alleged to have been illegally collected. Not only were the statements there made respecting "payment of the tax" pure dictum, but even the language there used did not embrace, and certainly was not directed to, the question whether full payment of an assessment is a condition upon the jurisdiction of a District Court to entertain a suit for refund.
I pass, then, to an examination of the history of the present jurisdictional provision, § 1346(a), and the scheme of the present tax law to determine whether there is any real support for the Government's contention that a proper reading of the language of § 1346(a) requires an implied qualification to its obvious self-explanatory meaning, so that full payment of an assessment, alleged to have been illegal, is made a condition upon the jurisdiction of a District Court to entertain a suit for refund.
"[W]here money is illegally demanded and received by an agent, he cannot exonerate himself from personal responsibility by paying it over to his principal if he has had notice not to pay it over."
10 Pet. at 35 U. S. 158. As a result of that case, Collectors of Customs who collected monies, paid under protest, resorted to the practice of withholding such amounts from the Government as indemnity against loss should a refund suit against them be successful. See Plumb, Tax Refund Suits Against Collectors of Internal Revenue, 60 Harv.L.Rev. 685, 688-689. That practice led to abuses, and facilitated peculation under the guise of self-protection. Because of the wholesale frauds of Swartwout, the New York Collector (see Swartwout, 18 Dictionary of American Biography (1936), 238-239), Congress, in 1839, expressly prohibited such withholdings by Customs Collectors pending the possibility, or the result, of litigation against them. Act of March 3, 1839, c. 82, § 2, 5 Stat. 348. Six years later, in 1845, this Court held that this Act, by reducing the Collector to "the mere bearer of those sums [duties] to the Treasury," terminated the right of action against the Collector for refund, for, being deprived of the right to withhold payment to his principal, he was no longer under an implied promise to refund illegally collected duties to the taxpayer. Cary v. Curtis, 3 How. 236, 44 U. S. 241 (1845).
This created the intolerable condition of denying to taxpayers any remedy whatever in the District Courts to recover amounts illegally assessed and collected, and -- doubtless also influenced by the vigorous dissents of Mr.
the protest be made in writing before or at the time of the payment.
"All claims [against the United States, not exceeding $1,000] founded upon the Constitution of the United States or any law of Congress, . . . or upon any contract, expressed or implied, with the Government of the United States, or for damages, liquidated or unliquidated, in cases not sounding in tort, in respect of which claims the party would be entitled to redress against the United States either in a court of law, equity, or admiralty if the United States were suable."
"No suit shall be maintained in any court for the recovery of any internal tax alleged to have been erroneously or illegally assessed or collected, or of any penalty claimed to have been collected without authority, or of any sum alleged to have been excessive or in any manner wrongfully collected, until appeal shall have been duly made to the Commissioner of [the] Internal Revenue. [Footnote 2/13]"
the claims for refund which were required to be submitted to the Commissioner before suit might be brought thereon. What reasonable basis is there for ascribing to Congress, by reason of its insertion of this language into the Tucker Act, an intent to require full payment of an illegal assessment as a condition upon the jurisdiction of a District Court to entertain a suit for refund? The change was a jurisdictional one in a jurisdictional statute, and the language, it is almost necessary to assume, was chosen because, in another statute, it referred to all of the actions which could be brought for refund of internal revenue taxes.
into the otherwise plain, clear and unlimited provisions of the statute.
from distraint, [Footnote 2/20] until the legality of the assessment is finally determined. Any delay in collection which might be caused by holding that full payment of an assessment is not a condition upon the jurisdiction of a District Court to entertain a suit for refund would be of the same order as the delay incident to adjudication by the Tax Court, and would not create so incongruous a result as to justify giving an otherwise clear and unlimited statute a strained and unnatural meaning.
who pay assessments in installments would be without remedy to recover early installments that were wrongfully collected should the period of limitations run before the last installment is paid.
"The district courts shall have original jurisdiction . . . of . . . [a]ny civil action against the United States for the recovery of . . . any sum alleged to have been excessive or in any manner wrongfully collected under the internal revenue laws."
(Emphasis added.) English words more clearly expressive of the grant of jurisdiction to Federal District Courts over such cases than those used by Congress do not readily occur to me.
It must, therefore, be concluded that there is no sound reason for implying into § 1346(a) a limitation that full payment of an illegal assessment is a condition upon the jurisdiction of a District Court to entertain a suit for refund. Inasmuch as no contradiction or absurdity is created by so doing, I think it is our duty to rely upon the words of § 1346(a), rather than upon unarticulated implications or exceptions. Particularly is this so in dealing with legislation in an area such as internal revenue, where countless rules and exceptions are the subjects of frequent revisions and precise refinements.
the concluding phrase -- "or any sum alleged to have been excessive or in any manner wrongfully collected" -- leaves no room or basis for any such construction of the statute as a whole. Judged by its text and its history in relation to other provisions of the tax laws, as must be done, I cannot doubt that Congress plainly expressed its intention to waive sovereign immunity to suits, and to grant jurisdiction to District Courts over suits, against the United States to recover "any sum" alleged to have been wrongfully collected. Petitioner's complaint here alleged that the $5,058.54 which he had paid to the Commissioner upon the questioned assessment "has been illegally and unlawfully collected" from him. The complaint, therefore, stated a cause of action within the jurisdiction of the District Court.
But the Court does not so see it. The majority now hold, despite the statute, that full payment of an illegal assessment is a condition upon the jurisdiction of a District Court to entertain a suit for refund. It therefore seems appropriate, in order eventually to avoid the harsh injustice of permitting the Government unlawfully to collect and retain taxes that are not owing, to express the hope that Congress will try again.
"So also, in the Internal Revenue Department, the statute which we have copied allows appeals from the assessor to the Commissioner of Internal Revenue, and, if dissatisfied with his decision, on paying the tax, the party can sue the collector; and if the money was wrongfully exacted, the courts will give him relief by a judgment, which the United States pledges herself to pay."
". . . While a free course of remonstrance and appeal is allowed within the Departments before the money is finally exacted, the General Government has wisely made the payment of the tax claimed, whether of customs or of internal revenue, a condition precedent to a resort to the courts by the party against whom the tax is assessed. . . . If the compliance with this condition [that suit must be brought within six months of the Commissioner's decision] requires the party aggrieved to pay the money, he must do it. He cannot, after the decision is rendered against him, protract the time within which he can contest that decision in the courts by his own delay in paying the money. It is essential to the honor and orderly conduct of the Government that its taxes should be promptly paid and drawbacks speedily adjusted, and the rule prescribed in this class of cases is neither arbitrary nor unreasonable. . . ."
"The objecting party can take his appeal. He can, if the decision is delayed beyond twelve months, rest his case on that decision; or he can pay the amount claimed, and commence his suit at any time within that period. So, after the decision, he can pay at once, and commence suit within the six months. . . ."
92 U.S. at 92 U. S. 88-89.
"all that the taxpayer was at that time legally obligated to pay, and all (in the absence of a so-called jeopardy assessment) that the Commissioner was at that time legally empowered to collect."
(It should be pointed out that, in Cook v. Tait and Bowers v. Kerbaugh-Empire Co., installments fell due immediately after suit was begun, and before hearing or adjudication; these installments were not paid as they came due.) It seems almost unnecessary to say that the words of the jurisdictional statute simply will not support this fine distinction urged by the Government; nor is there the least support for it (there is, if anything, contradiction) in the material the Government cites to establish an understanding of the full payment requirement.
The lower court' decisions cited by petitioner, that were rendered prior to 1940, in which taxpayers had paid, and sued to recover, less than the whole of assessments alleged to have been illegal, and in which the Government did not question jurisdiction, are: Tsivoglou v. United States, 31 F.2d 706 (C.A. 1st Cir. 1929); Heinemann Chemical Co. v. Heiner, 92 F.2d 344 (C.A. 3d 1937); Thomas v. United States, 85 Ct.Cl. 313, 18 F.Supp. 942 (1937); Peerless Paper Box Mfg. Co. v. Routzahn, 22 F.2d 459 (D.C.N.D.Ohio 1927); Welch v. Hassett, 15 F.Supp. 692 (D.C.Mass.1936); McFadden v. United States, 20 F.Supp. 625 (D.C.E.D.Pa.1937); Leavitt v. Hendricksen, 37-2 U.S.T.C. ¦ 9312 (D.C.W.D.Wash.1937).
In justice to counsel for both parties, it seems appropriate to observe -- what every lawyer knows -- that cases such as these, in which there "lurked in the record" questions that were not raised or decided, are not discoverable by any ordinary means of reference. Without doubt, this fact accounts for the failure of counsel to take account of or to cite, and of this Court to find, those cases on the first hearing.
Petitioner has cited a number of other cases, decided by the lower courts prior to and during 1940, that sought recovery of partial payments upon assessments, and in each of which the Government did challenge, but unsuccessfully, the jurisdiction of the courts, namely, Coates v. United States, 111 F.2d 609 (C.A. 2d Cir. 1940); Camp v. United States, 44 F.2d 1269 (C.A. 4th Cir. 1930); Ohio Steel Foundry Co. v. United States, 69 Ct.Cl. 158, 38 F.2d 144 (1930); Emery v. United States, 27 F.2d 992 (D.C.W.D.Pa.1928); Old Colony R. Co. v. United States, 27 F.2d 994 (D.C.Mass.1928).
Petitioner has also cited 22 similar cases, decided by the lower courts since 1940. In 17 of them (Kavanagh v. First National Bank, 139 F.2d 309 (C.A. 6th Cir. 1943); Griffiths Dairy, Inc., v. Squire, 138 F.2d 758 (C.A. 9th Cir. 1943); United States v. Pfister, 205 F.2d 5389 (C.A. 8th Cir. 1953); Gallagher v. Smith, 223 F.2d 218 (C.A. 3d Cir. 1955); Perry v. Allen, 239 F.2d 107 (C.A. 5th Cir. 1956); Auricchio v. United States, 49 F.Supp. 184 (D.C.E.D.N.Y.1973); Professional Golf Co. v. Nashville Trust Co., 60 F.Supp. 398 (D.C.M.D.Tenn.1945); Jack Little Foundation v. Jones, 102 F.Supp. 326 (D.C.W.D.Okl. 1951); Hogg v. Allen, 105 F.Supp. 12 (D.C.M.D.Ga.1952); Snyder v. Westover, 107 F.Supp. 363 (D.C.S.D.Cal.1952); Wheeler v. Holland, 120 F.Supp. 383 (D.C.N.D.Ga.1954); Peters v. Smith, 123 F.Supp. 711 (D.C.E.D.Pa.1954); Zukin v. Riddell, 55-2 U.S.T.C. ¦ 9688 (D.C.S.D.Cal.1955); Lewis v. Scofield, 57-1 U.S.T.C. ¦ 9251 (D.C.W.D.Tex.1956); McFarland v. United States, 57-2 U.S.T.C. ¦ 9733 (D.C.M.D.Tenn.1957); Raymond v. United States, 58-1 U.S.T.C. ¦ 9397 (D.C.E.D.Mich.1958); Freeman v. United States, 58-1 U.S.T.C. ¦ 9309 (D.C.S.D.Cal.1958)), the Government did not question the jurisdiction of the courts, and in the other five cases (Bushmiaer v. United States, 230 F.2d 146 (C.A. 8th Cir. 1956); Sirian Lamp Co. v. Manning, 3 Cir., 1941, 123 F.2d 776 (C.A. 3d Cir. 1941); Jones v. Fox, 57-2 U.S.T.C. ¦ 9876 (D.C.Md.1957); Hanchett v. Shaughnessy, 126 F.Supp. 769 (D.C.N.D.N.Y.1954); Rogers v. United States, 155 F.Supp. 409 (D.C.E.D.N.Y.1957)), the Government did challenge the jurisdiction of the courts, but prevailed upon the point only in the last-mentioned case.
Sirian Lamp Co. v. Manning, 123 F.2d 776 (C.A. 3d Cir. 1941),was a suit against the Collector, and therefore did not come under the jurisdictional provision here in issue, which is applicable only to suits against the United States. But it held expressly that a suit for refund may be maintained to recover a partial payment of an assessment. No one has suggested that the jurisdictional requirement of the amount of the assessed tax that must be paid, as a prerequisite to a suit for refund is different when the suit is against the Collector, with regard to which suits there is no specific jurisdictional provision, rather than against the United States.
See also Bend v. Hoyt, 13 Pet. 263, 38 U. S. 267 (1839). Elliott v. Swartwout seems to have been the first case in this country expressly to recognize the right.
"[N]othing contained in [the Act of March 3, 1839, c. 82, § 2] . . . shall take away, or be construed to take away or impair, the right of any person or persons who have paid or shall hereafter pay money, as and for duties, under protest, to any collector of the customs . . . which duties are not authorized or payable in part or in whole by law, to maintain any action at law against such collector . . . to ascertain any try the legality and validity of such demand and payment of duties . . . ; nor shall any action be maintained against any collector, to recover the amount of duties so paid under protest, unless the said protest was made in writing, and signed by the claimant at or before the payment of said duties, setting forth distinctly and specifically the grounds of objection to the payment thereof."
"[Congress being in session when the decision of the court in the case of Carey v. Curtis, 3 How. 236, was made, the following act [the Act of Feb. 26, 1845] was passed.]"
The Court recognized that internal revenue collectors, like customs collectors, were required to pay daily into the Treasury all sums collected under the internal revenue laws. Act of March 3, 1865, c. 78, § 3, 13 Stat. 483. In refusing to reach the same result as had been reached in Cary v. Curtis, without an express saving statute such as the Act of Feb. 26, 1845, the Court relied upon the provisions in the internal revenue laws that the Commissioner shall pay all judgments for refunds recovered against Collectors. Act of March 3, 1863, c. 74, § 31, 12 Stat. 729; Act of June 30, 1864, c. 173, § 44, 13 Stat. 239; Act of July 13, 1866, c. 184, § 9, 14 Stat. 101, 111.
"Clear implication of the several provisions is that a judgment against the collector in such a case [a refund suit] is in the nature of a recovery against the United States, and that the amount recovered is regarded as a proper charge against the revenue collected from that source."
City of Philadelphia v. The Collector, 5 Wall. at 72 U. S. 733.
Act of March 3, 1911, c. 231, § 24, 36 Stat. 1093. The monetary limitation was entirely eliminated in 1954. Act of July 30, 1954, c. 648, § 1, 68 Stat. 589.
"for the recovery of any internal revenue tax alleged to have been erroneously or illegally assessed or collected, or any penalty claimed to have been collected without authority or any sum alleged to have been excessive or in any manner wrongfully collected under the internal revenue laws."
See 61 Cong.Rec. 7506-7507 (1921); H.R.Conf.Rep. No. 486, 67th Cong., 1st Sess. 57 (1921).
"[N]o suit shall be maintained in any court for the recovery of any tax alleged to have been erroneously or illegally assessed or collected, until appeal shall have been duly made to the commissioner of internal revenue. . . ."
It is important to note that this was the "claim for refund" statute in effect at the time of, and that was applicable to, Cheatham v. United States, supra. Quite unlike § 1346(a), it made no reference to "any sum."
"The committee [on Ways and Means] recommends the establishment of a Board of Tax Appeals to which a taxpayer may appeal prior to the payment of an additional assessment of income, excess profits, war profits, or estate taxes. Although a taxpayer may, after payment of his tax, bring suit for the recovery thereof, and thus secure a judicial determination on the questions involved, he cannot, in view of section 3224 of the Revised Statutes, which prohibits suits to enjoin the collection of taxes, secure such a determination prior to the payment of the tax. The right of appeal after payment of the tax is an incomplete remedy, and does little to remove the hardship occasioned by an incorrect assessment. The payment of a large additional tax on income received several years previous and which may have, since its receipt, been either wiped out by subsequent losses, invested in nonliquid assets, or spent sometimes forces taxpayers into bankruptcy, and often causes great financial hardship and sacrifice. These results are not remedied by permitting the taxpayer to sue for the recovery of the tax after this payment. He is entitled to an appeal and to a determination of his liability for the tax prior to its payment."
H.R.Rep. No. 179, 68th Cong., 1st Sess. 7 (1924).
"Now it is true that, under the present law, it is possible to get a judicial review, but it is very slow and expensive. In order to get a judicial review under the law as it exists today, a man must pay his tax and pay it under protest; then he must file a claim for refund; then the Government has six months within which to accept or reject it; then, after that, he must begin an action in the courts."
Remarks of Representative Young, 65 Cong.Rec. 2621 (1924).
"The practice, as I understand it, has been to require the taxpayer to pay in the amount of the increased assessment, and then to allow him to get it back if he can. In addition to this, distraints frequently have been issued seizing the property of the citizen, so that the man whose taxes may have been raised unjustly may find himself forced to raise a large sum of money at once or have his property seized."
Remarks of Senator Reed of Missouri, 65 Cong.Rec. 8109 (1924).
"One of the chief arguments presented in the reports of the committees of both Houses [upon the creation of the Board of Tax Appeals] was to relieve the taxpayer of the hardship of being forced to go out and pay his tax before he could have a judicial consideration of the problems involved in his case. The taxpayer who was faced with, say, $100,000 of additional tax, and who was forced to pay that money, very frequently had his credit destroyed, and sometimes he was forced into bankruptcy in order to meet that payment. It was a real hardship. The man who had already paid the tax had gone through the suffering, had filed his claim for refund, and had his remedy. He has the remedy that he had prior to the creation of the board."
Statement of Charles D. Hamel, first Chairman of the Board of Tax Appeals, Hearings before the House Committee on Ways and Means on the Revenue Revision, 1925, Oct. 19 to Nov. 3, 1925, pp. 922, 923.
"Except as provided in sections 6212(a) and (c), and 6213(a) [giving a right to petition the Tax Court], no suit for the purpose of restraining the assessment or collection of any tax shall be maintained in any court."
Int.Rev.Code, 1954, § 7421. Such a provision has been in the law since the Act of Mar. 2, 1867, c. 169, § 10, 14 Stat. 475.
Indeed there does not seem to be any way of restraining the Commissioner from collecting the remainder of a deficiency even after the taxpayer who has paid part has won a suit for refund, the Commissioner thus forcing the taxpayer to bring another action for refund.
See §§ 7422(e) and 6512 of the Internal Revenue Code of 1954, giving, respectively, the District Courts and the Tax Court jurisdiction over suits involving both deficiencies and claims for refund.
The Government suggests that, if this Court permits the petitioner to maintain his action for refund, it will, as a consequence, sanction the practice of a taxpayer making only "token payment," and then, by a suit for refund, adjudicating the legality of the entire assessment. We are not here concerned with such a totally different question. Petitioner's payment of $5,058.54 on an assessment of $27,251.13 certainly was not a "token payment"; nor could the suit to recover the amount paid be said to be one for a declaratory judgment -- not permitted "with respect to Federal taxes" -- under 28 U.S.C. § 2201.
Except for the provision made for a "jeopardy assessment." Int.Rev.Code, 1954, § 6861.
See Int.Rev.Code, 1954, §§ 6511, 6532, 26 U.S.C. §§ 6511, 6532.
"The district courts shall have original jurisdiction . . . of . . . [a]ny civil action against the United States for the recovery of . . . any sum alleged to have been excessive or in any manner wrongfully collected under the internal revenue laws?"


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STATE of Tennessee, Defendant in Error.
Maddux, Cameron & Jared, Cookeville, for plaintiff in error.
George F. McCanless, Atty. Gen., Thomas E. Fox, Asst. Atty. Gen., Nashville, for defendant in error.
The plaintiff in error, the defendant in the court below, was convicted of murder in the second degree and punishment was fixed at not more than fifteen years in the State Penitentiary. A motion for a new trial was seasonably made and overruled, and the defendant has perfected his appeal. He has assigned as error (1) that the evidence preponderates against the verdict of guilty and in favor of his innocence; (2) that the verdict is contrary to the law and to the evidence; and (3) that there is no evidence to support the verdict of the jury.
In order for the Court to pass upon these matters, it is necessary to outline briefly the evidence upon which the defendant was found guilty as aforesaid. The facts are in sharp dispute. However, it does appear without dispute that the defendant, Bennett Gann, and Roxie D. Richardson, the daughter of the deceased, had been living together for approximately two years in Kentucky and Indiana as common law husband and wife. Some misunderstanding developed and Roxie D. Richardson returned from Kentucky to her parents’ home. A few days later the defendant brought her clothing and personal effects to the home of Frank Richardson, her father. An argument took place which resulted in a gun battle wherein Frank Richardson, 74 years of age, was slain.
The deceased then armed himself with a twelve gauge shotgun, descending from his porch into his yard as he approached the defendant. His wife accompanied him armed with a small pistol, a.22 caliber.
There was further testimony that the defendant began firing at the deceased and his wife from behind his car, using the top of the car as a resting place for his pistol. When Frank Richardson got close to the defendant’s car, the two began wrestling for the deceased’s shotgun, causing it to discharge into a nearby tree.
In the meantime, Robert Richardson, using his mother’s pistol, attempted to shoot the defendant at close range, but the weapon would not fire. He then began to pistol whip the defendant with the gun. At this time, the defendant fired several more shots, wounding Robert Richardson and fatally wounding Frank Richardson.
Several State witnesses stated that when the defendant refused to leave the premises prior to the first pistol shot, Mrs. Richardson instructed her son, Gennie Fay, to drive to a nearby telephone and “call the law.” The defendant, thereupon, fired shots over or at Gennie Faye’s car. Upon cross-examination it was brought out that such testimony was not given at the preliminary hearing held in the case, and the credibility of those witnesses was thereby questioned.
According to the defendant Mrs. Richardson came around one side of the car, while the deceased approached from the other side. Robert Richardson also attacked the defendant with a .22 rifle and later began pistol whipping the defendant. The defendant further testified that he did not fire until he had been knocked down and was being beaten to death by Robert Richardson. He then fired several shots, wounding Robert Richardson in the arm, but was of the opinion that he did not shoot Frank Richardson, the deceased. The defendant also put into evidence the hat which he wore on that day in which there were two alleged bullet holes.
“Q. Did you live together up there?
“A. Can you prove I lived with him?
“Q. Did you live with him?
“A. Did I say I did?
In general, the proof presented in behalf of the defendant set forth the following defenses: (1) the deceased person was not actually killed by the defendant; (2) the defendant was acting in self-defense when he fired his pistol; and (3) there was no malice on the part of the defendant which is a necessary element in a second degree murder conviction.
In considering this case on appeal, we do so with the presumption that the defendant is guilty as found by the jury and approved by the court. His presumption of innocence disappears after conviction and he is presumed to be guilty here. The jury and the trial judge see and hear the witnesses face to face and are in a far better position to determine who is correctly detailing the truth of the matter than are we who see only the record. Holt v. State, 210 Tenn. 188, 357 S.W.2d 57 (1961); Gang v. State, 191 Tenn. 468, 234 S.W.2d 997 (1950); Christian v. State, 184 Tenn. 163, 197 SW.2d 797 (1946); Ferguson v. State, 138 Tenn. 106, 196 S.W. 140 (1917).
Likewise, it has long been the law of this State that the credibility of witnesses and conflicts in testimony are settled by the verdict of the jury when approved by the trial court. In this case much of the evidence presented by the State is diametrically opposed to the statements of the defense witnesses. Under such circumstances, it is the duty of the jury to determine the truth of the situation, following closely the instructions of the judge. In so doing, the jury should reconcile any conflicts of testimony which may be reconciled, but if such differences cannot be reconciled, then the duty of the jury is to accept that which they think true and reject the false. Holt v. State, supra; Anderson v. State, 207 Tenn. 486, 341 S.W.2d 385 (1959).
Hence, we must examine the various defenses presented in behalf of the defendant in the light of precedents. The first defense is that the evidence presented was insufficient to support a verdict that the defendant, in fact, fired the fatal bullet which killed Frank Richardson.
On this point, the record shows that Dr. E.M. Dudney, testified that when he examined the body of the deceased a bullet was found in his inferior vena cava. Dr. Dudney testified that the bullet wound caused the stomach cavity to be filled with blood and “I am sure that the bleeding was the immediate cause of death.” A complete autopsy was not performed.
Secondly, Robert C. Goodwin, firearms examiner for the Tennessee Bureau of Investigation, testified that the bullet extracted from the deceased’s body would have had to come from the gun which the defendant fired. The defendant’s gun was not operational and could not be test-fired to compare bullet markings. However, Mr. Goodwin established by visual examination of the groove markings that the bullet “would have had to come from this gun here”, the gun fired by the defendant.
Of the weapons examined all but the defendant’s gun had rifling specifications that consisted of six lines and grooves that inclined to the right, which would twist the bullet to the right as it left the barrel. The defendant’s weapon, a Colt Woodsman, semi-automatic pistol, contained six lines and grooves that inclined to the left, making it the only weapon from which the fatal bullet could have been fired.
We think the above testimony constitutes the best available evidence and is sufficient to uphold the jury verdict that the fatal bullet came from the gun admittedly fired by Bennett Gann, and was the cause of death of the deceased person. In our opinion the evidence does not preponderate against the verdict and in favor of the innocence of the accused, but rather it fully supports the verdict.
The defendant next contends that the verdict is contrary to the law and, therefore, should be reversed. Embodied in this assignment of error is the claim that the defendant was acting in self-defense and, therefore, the homicide was justifiable.
A guilty verdict, as previously discussed, accredits the testimony of witnesses for the State and establishes their credibility, and raises a presumption of the defendant’s guilt, placing upon the defendant the burden of showing that the evidence preponderates against the verdict. In our opinion the defendant has not carried the burden.
According to the State’s witnesses, which we must accept as true upon appeal, the defendant drove his car to the premises of Frank Richardson and refused to leave. An argument ensued during which the defendant invited Frank Richardson to get his gun. As the deceased approached the defendant, the defendant fired several shots at the deceased and his wife. A struggle for the deceased’s shotgun then took place, resulting in the discharge of the shotgun. Upon further wrestling, the defendant then fired the shot that killed Frank Richardson and fired another shot which wounded Robert Richardson. The defendant then left the premises offering no assistance to any of the wounded parties.
We think that under these facts the defendant is unable to rely upon the doctrine of self-defense. The law of Tennessee is that an aggressor, who produces fear or apprehension of death or great bodily harm in the mind of his adversary, can not lawfully defend his life against the deadly defensive act of his adversary by taking the latter’s life, until he has restored his right of self-defense, lost by his initial fault, by abandoning and withdrawing from the contest and giving notice of the fact to the adversary. The aggressor’s act is unlawful and felonious, and his adversary’s act lawful and necessary, and the former, as the guilty party, must bear all unavoidable consequences flowing from his wrongful act. Irvine v. State, 104 Tenn. 132, 56 S.W. 845 (1900); Cooper v. State, 123 Tenn. 37, 138 S.W. 826 (1909).
The record contains ample evidence which would justify the verdict that the defendant was the initiator of the incident which resulted in the death of Frank Richardson. The jury, after hearing all of the witnesses, has concluded that the State’s version most closely represents the truth and we feel bound to accept its determination under the present circumstances.
The defendant, finally, contends that the evidence was insufficient to support the jury verdict of second degree murder. The theory of this assertion is that the element of malice has not been proved and, therefore, the charge should be reduced from second degree murder to voluntary manslaughter.
“* * * the presumption of malice arising in law from this killing, and from the deadly character of the weapon used, is rebutted by the proof of the suddenness of the rencounter (sic), the violence of the assault on the part of the deceased, and the dangerous nature of the weapon used by her. And in the absence of proof of express malice, this killing must be held to have been the result of sudden heat and excited passion, and, therefore, not murder in either the first or second degree.” 29 Tenn. at 149.
We have given close attention to this claim and have carefully examined all of the cases presented in defendant’s brief. We have also taken notice of the case of Hunt v. State, 202 Tenn. 227, 303 S.W.2d 740 (1956), not cited by either party.
The law in Tennessee is that all homicide is presumed to be malicious, in the absence of evidence which would rebut the implied presumption. Coffee v. State, 11 Tenn. 283, 24 Am.Dec. 570 (1832); Witt v. State, 46 Tenn. 5 (1868); Gray v. State, 63 Tenn. 331 (1874); Harper v. State, 206 Tenn. 509, 334 S.W.2d 933 (1960).
Likewise, if a weapon is handled in a manner so as to make the killing a natural or probable result of such conduct, malice will be presumed from the use of the said weapon. Lewis v. State, 202 Tenn. 328, 304 S.W.2d 322 (1957); Nance v. State, 210 Tenn. 328, 358 S.W.2d 327 (1962). Thus, the proof of the use of a deadly weapon is sufficient to sustain a charge of second degree murder unless it is rebutted by other facts and circumstances. Bostick v. State, 210 Tenn. 620, 360 S.W.2d 472 (1962); Smith v. State, 212 Tenn. ___, 370 S.W.2d 543 (1963).
The question, therefore, reduces itself to whether or not the presumption of malice has been rebutted by the facts and circumstances. We think not. The testimony of the State’s witnesses, which we are bound by because it has been believed by the jury, points out that the defendant was on the deceased’s property at the time of the fatal shooting; the defendant carried with him a deadly weapon; the defendant was responsible for the argument that ensued; the defendant provoked the use of deadly weapons by saying, “Put your gun where your mouth’s at”; the defendant fired several shots at his adversary before he was fired upon; and the defendant refused to help care for the wounded man before he left the premises.
All of these facts are sufficient, in our opinion, to confirm the finding of malice which was already presumed because of the use of a deadly weapon. To hold otherwise would be to utterly disregard the finding of the jury.
Nor are we swayed by the argument that there was present “suddenness” or “excited passion” as would rebut the presumption of malice in this case. Here, the defendant was on the property of the deceased person, threatened the deceased with a deadly weapon, and in the jury’s opinion, provoked the entire incident. He will not be now heard to say that he is excused from malice merely because an emotional and violent encounter took place. The defendant must have known full well that such conduct would have produced fear and apprehension of death in the mind of his adversary, and might provoke an incident such as in fact occurred.
We have considered the case of Hunt v. State, 202 Tenn. 227, 303 S.W.2d 740 (1956), wherein this Court reduced a second degree conviction to voluntary manslaughter on the grounds that mutual combat took place among the defendants and deceased person. However, we are satisfied that this case is distinguishable since in the Hunt case the defendant did not originate the fight, whereas in the case at bar defendant actively provoked the incident which resulted in the death of Frank Richardson.
We, therefore, overrule all assignments of error, and the judgment of the lower court is affirmed.
BURNETT, C. J., DYER and HOLMES, JJ., and CLEMENT, Special Justice, concur.

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I have been notified of another post-Koken case in favor of consolidation. The case of Vernon v. Erie Ins., highlighted below in bold in the compilation, was issued by Judge Wettick. I thank Attorney William R. Haushalter of the Pittsburgh office of Margolis Edelstein for bringing this case to my attention.
The following is a list of post-Koken cases that I have come across or have been made aware of over time. It is by no means intended to be an exhaustive list of these types of decisions to date and there may very well be other opinions out there.
All of the opinions and orders noted below have been generated from trial courts across the Commonwealth. I am unaware of any appellate decisions having been handed down yet in this area.
To date there have been at least sixteen (16) trial court decisions in favor, or suggesting they would be in favor, of the consolidation of UIM and third party claims. Those decisions have come out of Lackawanna, Luzerne, Pike, Lehigh, Philadelphia, Dauphin, Beaver, and Allegheny Counties.
There have also been at least three (3) trial court decisions in favor of the severance of the UIM claims and third party claims. Those decisions have come out of Butler and York Counties.
I would be interested in being notified of any other post-Koken cases you may be aware of so that they can be publicized and a consistent common law can be generated in this area.
If any one needs a copy of any of the opinions or orders listed below, please do not hesitate to contact me. I am in possession of a copy of most of the opinions noted.
I also invite anyone, including claims representatives, needing any other assistance with a post-Koken case pending in Northeastern Pennsylvania to please contact me to discuss the matter. I can be reached at dancummins@comcast.net.
Decker v. Nationwide Ins. Co., 2008 WL 6653069, 2005-Civil-1863//2006-Civil 2119 (Lacka. Co. March 4, 2008)(Minora, J.)(consolidation permitted of bad faith action against UIM carrier and declaratory judgment action regarding coverage). See also Decker v. Nationwide, 2007 WL 6853118 (Lacka. Co. 2007).
Gunn v. Auto. Ins. Co. of Hartford, Conn., 2008 WL 6653070, GD07-Civil-002888 (Alleg. Co. July 25, 2008)(Wettick, J.)(Bad faith claim and UIM claim allowed to proceed together).
Vernon v. Erie Insurance, No. GD 08-10406 (Allegheny Co. 2009, Wettick, J.)(court issued an Order without Opinion denying Erie's motion to stay discovery and bifurcate the UIM Claim from the Bad Faith claim; the bad faith claim was scheduled to be tried immediately upon the UIM case being sent to the jury. Also, the tort action was consolidated for trial with the UIM action. Ultimately, the case settled before jury selection).
Augustine v. Erie Ins. Exchange, 2006-Civil-416 (Lacka. Co. August 1, 2008)(Mazzoni, J.)(Motion to sever bad faith claim from UIM claim denied).
Collins v. Zeiler and State Farm, GD08-Civil-014817 (Alleg. Co. October 22, 2008)(Strassburger, J.)(Preliminary objection seeking to sever claims denied.).
Moyer v. Harrigan and Erie Ins. Exchange, 2008-Civil-1684 (Lacka. Co. October 24, 2008)(Thomson, J. visiting judge)(Consolidation of UIM claim and claim against tortfeasor permitted).
Jannone v. McCooey and State Farm, 2009 WL 2418862, 2320-2008-Civil (Pike Co. April 1, 2009)(Chelak, J.)(Preliminary objection by tortfeasor to joinder of third party claim and UIM claim under one caption rejected; court also rules that evidence of insurance may come into evidence at trial for limited purposes).
Serulneck v. Kilian and Allstate, 2008-Civil-2859 (Lehigh Co. April 7, 2009)(McGinley, J.)(Motion of tortfeasor defendant for severance of claims against him from UIM claims under one caption denied.).
Six v. Phillips and Nationwide Ins. Co., 12227-Civil-2008, 2009 WL 2418861 (Beaver Co. June 30, 2009)(Kwidis, J.)(Preliminary objection by tortfeasor to joinder of third party claim and UIM claim under one caption rejected; court also rules that evidence of insurance may come into evidence at trial for limited purposes.).
Glushefski v. Sadowski and Erie Ins. Exchange, 1189-Civil-2009 (Luz. Co. July 24, 2009)(Burke, J.)(Preliminary objection by tortfeasor defendant seeking to sever third party claim from consolidated UIM claim overruled).
Richard Hess v. Cosgrove et al., Phila, July Term, 2008, no. 3708 (request to sever UIM claim and third party claim denied).
Kelly Hess v. Dickel, et al., Phila, October Term, 2008, no. 3220 (request to sever UIM claim and third party claim denied).
Fuhrman v. Frye and State Farm, Dauphin, 2008 CV 17687 (request to sever UIM claim and third party claim denied).
Sellers v. Hindes and State Farm, Dauphin, 2009 CV 1989 (request to sever UIM claim and third party claim denied).
Gingrich v Esurance and Susan Graci, No. 08795 CV 2009 (Dauphin Co. Nov. 2, 2009, J. Hoover)(Tortfeasor's preliminary objections to complaint which joined tortfeasor and the underinsured motorist causes of action under one caption denied in one line Order).
Weichey v. Marten and Allstate, A.D. No. 09-10116 (Butler Co., June 11, 2009, Yeager, J.)(Court orders severance of UIM and third party claims under the general rationale that insurance is not admissible in third party negligence actions).
Baptiste v. Strobel and State Farm Mut. Auto. Ins. Co., 2009 WL 3793590, A.D. 09-11444 (Butler Co. Nov. 5, 2009, Horan, J)(Court orders UIM claim and third party claim severed).
Grove v. Uffelman and Progressive Ins. Co., 2009 WL 3815756, No. 2009-SU-2878-01 (York Co., Nov. 9, 2009, Chronister, J.)(Court orders UIM claim and third party claim severed).
O'Hara v. The First Liberty Ins. Corp. d/b/a Liberty Mut. Ins. Group, 2009 Pa.Super. 214 (November 9, 2009, Judges Freedberg, Cleland and Kelly)(Consolidation vs. severance issue not implicated as plaintiff settled with tortfeasor and only sued UIM carrier in post-Koken case; Superior Court upholds UIM carrier's forum selection clause requiring UIM lawsuit to be brought in the county of the insured's legal domicile at the time of the accident)(As of November 30, 2009, the Plaintiff had filed for re-argument en banc before the Superior Court but no word yet as to whether that request was being granted).

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