Opinion of the Court

section provides that where a deficiency in tax is discovered upon examination of a return the taxpayer shall be notified and given 30 days to show cause why the tax should not be paid and that "opportunity for hearing shall be granted." It is a circumstance bearing upon the question of consent that the plaintiff did not question, so far as the facts disclose, the commissioner's right to proceed with the assessment as upon a consent in writing by both parties. The statement in its application for a refund that it had not consented was much later and apparently was not made until after its first application for a refund had been rejected. We think it a material part of plaintiff's case that it prove that the exceptions stated in the act do not apply to its claim. It is essential that it show that it has a valid claim against the United States. In Bergdoll v. Pollock, 95 U. S. 337, the court held that in order to collect taxes paid under a second assessment the taxpayer was required by the act (section 3225, Rev. Stat.) to show that his return did not contain any "understatements." This section (3225), for many years a part of the statutory system for a recovery of taxes, was amended by the revenue act of 1918, 40 Stat. 1145, and reenacted in the revenue act of 1921, 42 Stat. 316, upon which act this suit is predicated. It was, however, repealed by the revenue act of 1924, 43 Stat. 343, with a provision for the reopening and decision of claims that had been denied because of its provisions. But section 250 (d), above quoted, has a proviso taking out of the limitation it prescribes all cases of false or fraudulent returns, and the principle is applicable that was announced in Bergdoll v. Pollock, supra, to the effect that plaintiff should show affirmatively that its case is not within the excepted class.

The suit being one against the United States, is maintainable only in accordance with the conditions which the Government has prescribed in consenting to be sued. "If it attaches even purely formal conditions to its consent to be sued, these conditions must be complied with." Rock Island, etc., R. R. v. United States, 254 U. S. 141, 143. The stipulated facts leave too much to implication. The plaintiff can not recover without showing a valid claim against the United States.

Opinion of the Court

There is another view for consideration. The plaintiff's contention that the act furnishes a right to recover all taxes collected after the expiration of five years from the date of the taxpayer's return presents a theory that manifestly can not be sustained unless it be held that the limitation prescribed by the act of 1921 operated not alone upon the remedy but also upon the right of the Government to collect and hold additional taxes after the end of the statutory limitation, even though such additional taxes were proper liabilities of plaintiff before that time. The general rule unquestionably is that the statute of limitations operates only to bar the remedy and does not extinguish the right. This is said in Brent v. Bank, 10 Peters 596, 616, to have been laid down by the court as an established principle. The plaintiff is here suing the United States and it is not the case of the United States suing the plaintiff for additional taxes. In the latter case, if sued, he could plead the statute or not plead it, as he might elect. It is a personal privilege. See Kendall case, 14 C. Cls. 122, 123, which distinguishes between the meaning of the statute of limitations applicable to claims against the Government asserted in this court and a general statute of limitations applicable to individuals. See Kendall case, 107 U. S. 123. The distinction is made plain in Finn's case, 123 U. S. 227, where the statute of limitations is held to be jurisdictional in the Court of Claims. It is there said (p. 232) that the general rule that limitation does not operate as a bar, but is a defense which may be pleaded or waived, has no application to suits in the Court of Claims against the United States. See also Campbell v. Holt, 115 U. S. 620, 625. Nor is the statute such an one as was considered in Phillips v. Grand Trunk Ry., 236 U. S. 662, 667, and Kansas City Southern Ry. v. Wolf, 261 U. S. 133, 139. The exceptions which it provides preclude the idea that it was intended to bar all right of the Government and absolutely wipe out the taxpayer's liability for taxes which had not been properly returned by him. If all obligation for the taxes was extinguished at the end of the five-year period, it would seem that the Government could never set up this tax liability as a counterclaim under the broad terms of the

Syllabus

second paragraph of section 145 of the Judicial Code. By an act to amend the revenue act of 1921, enacted in 1923, 42 Stat. 1504, provision is made for suits by the taxpayers to recover taxes they may have paid in excess of the amounts properly due under the taxing acts. The course open to a taxpayer where taxes are illegally exacted is to pay them and sue for their recovery. See Graham v. Dupont, 262 U. S. 234. But it is to be observed that the Government is not under obligation to provide a remedy through the courts. See Babcock case, 250 U. S. 328, 331. There is no implied promise on the part of the United States to repay to a taxpayer an amount of taxes which he was liable for, and the burden is on him to show that the Government ex aequo et bono is bound to refund the amount which he paid. See Bailey v. Railroad Company, 22 Wall. 604, 638; Page v. Skinner, 298 Fed. 731, 736. See also the case of United States v. Chamberlin, 219 U. S. 250, 260.

The petition should be dismissed. And it is so ordered.

GRAHAM, Judge; HAY, Judge; DOWNEY, Judge; and BOOTH, Judge, concur.

M. SAMUEL & SONS v. THE UNITED STATES

Sale;

66

[No. C-760. Decided December 7, 1925]

66

On the Proofs

as is, where is ".-Where the Government sells surplus war supplies as is, where is," the proposal therefor stating that quantities, descriptions, conditions, weights, analysis, etc.," are not guaranteed and that no refund will be made on account of said supplies not coming up to expectations, and they are open to inspection by prospective purchasers, and the Government acts in good faith, the purchaser can not maintain suit for breach of contract because the supplies delivered to it do not conform to those selected at random from the entire lot but not held out by the Government as samples. Same: failure to take delivery; forfeiture.--Plaintiff can not recover the value of purchased material which it does not remove as required by the contract, which the contract provides shall, if not removed within the time specified, be forfeited, and of which the Government thereafter makes other disposition.

Beporter's Statement of the Case

The Reporter's statement of the case:

Mr. Morris D. Kopple for the plaintiff.

Mr. Ralph C. Williamson, with whom was Mr. Assistant Attorney General Herman J. Galloway, for the defendant.

The court made special findings of fact, as follows:

I. The plaintiff was, during the transactions hereinafter set forth in these findings of fact, and still is, a corporation duly incorporated under the laws of the State of New York, engaged in the business of dealing in ferrous metals.

II. On or about September 23, 1922, Capt. G. S. Lavin, of the Ordnance Department, United States Army, commanding the Toledo Ordnance Reserve Depot, located at Toledo, Ohio, issued a circular dated September 23, 1922, described as proposal No. 5, for sealed proposals for the purchase of shells and shell forgings, the bids to be opened on October 23, 1922, at 2 o'clock p. m. Lot No. 1 consisted of forgings and semifinished shells; lot No. 2, finished Stokes trench mortar shells, inert; lot No. 3, finished shells for cannon, inert. One of these proposals was mailed to plaintiff.

*

*** * *

*

III. The material parts of proposal No. 5 read as follows: "Proposal No. 5. The supplies offered for sale are in three lots as listed below and are located at the Toledo Ordnance Reserve Depot, Toledo, Ohio. Lot No. 1, forgings and semifinished shell. Lot No. 2, finished Stokes trench mortar shell, inert. Lot No. 3, finished shell for cannon, inert. Lots Nos. 2 and 3 are offered 'as is, where is.' The successful bidders on lots 2 and 3 will be required to remove their purchases within sixty calendar days of the award. If the purchasers of these supplies fail to remove them within the time specified, or fail to furnish shipping instructions within such time as will enable this depot to complete deliveries within the specified time, then such supplies not removed or for which shipping instructions shall not have been furnished will revert to the Government and the purchaser shall forfeit to the Government any deposits or payments made thereon. The Government, however, reserves the right to extend the specified time limits for the removal of any of this material, provided the purchaser has made a reasonable effort to remove same and is prevented from doing so for reasons over which he has

Reporter's Statement of the Case

no control, and provided further that the Government shall be the sole judge in the matter of what constitutes a reasonable effort or what causes are beyond the control of the purchaser. *

* *

"On account of the reduced force at this establishment the Government can not undertake to do the loading of lots Nos. 2 and 3 for purchasers.

* * *

"The quantities, descriptions, conditions, weights, analysis, etc., of the supplies herein described are as accurate as circumstances permit, but are in no wise guaranteed by the Government, nor will any refund be made on account of any of the supplies not coming up to expectations. All of this material is open to inspection by prospective bidders between the hours specified in paragraph 10 above (between the hours of 7.45 a. m. and 4.30 p. m. daily except Sundays), and they should avail themselves of the opportunity of inspection before submitting bids.

In loading forgings more or less scale is of necessity lifted with the magnet. If cars are unloaded by hand at destination, this scale will be included in the light weight of the car at that point. Bidders should take this contingency into consideration in submitting their bids, as no claim for refund whose basis is the scale found in the car will be allowed.

"Such space as is available will be allotted the successful bidders on lots 2 and 3 for stripping bands and covers from shell included in their purchases.

* * *

"Particular attention is invited to the fact that none of the shell offered in this sale contains explosive of any kind, nor is there any explosive stored on the grounds of the T. O. D. There is, therefore, no extra hazard involved in the handling or transportation of any of this material."

(Proposal No. 5 is appended to plaintiff's petition and is made part hereof by reference thereto.)

IV. The description of lot No. 2 accompanying said proposal No. 5 reads as follows:

"557,807. Stokes Trench Mortar Shell, 3′′ MK. III, Practice.

"214.

Stokes Trench Mortar Shell, Dummy, British.

The body of each shell is of malleable iron weighing about 62 lbs., the booster-jacket and cartridge container are of steel, weighing together about one and one-quarter pounds, and the head-hole plug and bushing are die cast of white metal (supposedly 90 Pb and 10 Sb) weighing together about 3 lb. The assembled weight of each shell