Mr. Chief Justice Waite,
after stating the case, delivered the opinion of the court.
The objections made to the recovery are, in substance: 1, That the Court of Claims had no jurisdiction of the suit, because 'the claim sued for was not founded ion any law of Congress, or upon contract; and, 2, That the appeal to the Commissioner of Internal Revenue was not taken within two years after the cause of action accrued, and that consequently the allowance by that officer was without any authority of law.
The first of these objections is, we think, disposed of by United States v. Kaufman, 96 U. S. 567. That ease arose under sect. 3426, Rev. Stat., which is as follows: " The Commissioner of Internal Revenue may, from :time to time, .make regulations, upon proper evidence of facts, for the allowánce of such of the stamps issued under the provisions of this chapter, or any internal revenue act, and may have been spoiled, . . . and such allowance shall be made either by giving other stamps in lieu of the stamps so allowed for, or by repaying the amount or value, after deducting therefrom, in ease of repayment, the sum of. five per cent, to the owner thereof. . ,. ."
And we held that the allowance of a claim by the commissioner under this section was equivalent to an account stated between private parties, and binding on the United States, until in some appropriate form it was impeached for fraud or mistake, and that, if not paid on proper application through the accounting officers of the Treasury Department, an action might be maintained on it in'the Court of Claims, because it raised an implied promise on the part of. the United States to pay what might actually be due the. claimant, and also because the claim therefor was founded on 'a law of Congress within the meaning of that term as used in defining the jurisdiction of th,e court. We-cannot'discover any material difference between the powers of. the commissioner under . sect. 3426, and., those • which he has under sect.' 3220. Under' sect. 3426 he is to " allow-" the claim, which is done either by giving other stamps in' lieu of those that have been spoiled, &c., or by repaying the amount or value. Under sect. 3220 he is to " refund " and " pay back." His payments of money . in both cases must be made through the accounting officers of the Treasury Department, as he is not himself a disbursing officer. Whether his. allowance is conclusive on the other officers, through .whose hands it must'.necessarily pass before it can be paid by the treasurer, we did not then, and. need not now decide. - All we said then, and all we say now is, that if payment is not made by reason of' tlie refusal of any of the officers of the department to pass or pay the claim after it has once been allowed by the commissioner, the allowance maybe used as the basis of an action against the United States in the Court of Claims, where it will be prima facie evidence of the amount that is due, and put on the government' the burden of showing fraud or mistake. This burden is not. overcome by, proving that some other officer in the subsequent . progress of the claim through the department declined to do what the law or treasury regulations required of liim before payment could be obtained. The fact of fraud or mistake must be established by competent evidence, the same as any other fact in issue. An allowance by the commissioner in this class of cases- is not the simple passing of an ordinary claim by an ordinary accounting officer, but a statement of accounts by one having authority for that purpose under an act of Cotigress. Until an appeal is taken to the commissioner no suit whatever can be maintained-to recover back taxes illegally assessed of erroneously paid. • If on the appeal the claim is rejected, an action lies against the collector .(Rev.- Stat., sect. 3226), and through him, on establishing the error or illegality, a recovery can be had. If the claim is allowed, and payment for any cause refused, suit may be brought directly against the government in the Court of Claims. This, as it seems to us, is the logical result of the legislation of Congress upon the subject. A rejected claim may be prosecuted against the collector, and an allowed claim, not paid, may be sued for in the Court of Claims. To say the least, the decision of the commissioner on the appeal is sufficient to determine whether one form of remedy shall be resorted to by the claimant, or the other.
Upon the other branch of the case we are entirely satisfied with the conclusions reached by the court below, and that the lodging of the appeal made out in due form with the pi-oper collector of internal revenue for the purpose of transmission to the commissioner in the usual course of business, under the requirements of the regulations of the secretar}1-, was in legal effect a presentation of the appeal to the commissioner. The effect of the regulation was to designate the office of the collector of internal revenue as a proper place for the presentation of the appeal. The whole subject is so fully and satisfactorily considered in the opinion below, that we deem it unnecessary to do more than refer, to what is there said.
Judgment affirmed. '