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NATIONAL COMMER. TITLE & MORTG. GUAR. CO. v. DUFFY

December 30, 1941

NATIONAL COMMERCIAL TITLE & MORTGAGE GUARANTY CO.
v.
DUFFY et al.



The opinion of the court was delivered by: WALKER

The facts are: *fn1"

1. This action arises under an act of Congress providing for internal revenue, namely, the Act of June 16, 1933, 48 Stat. 195, as amended.

 2. Plaintiff is a corporation of the State of New Jersey organized under an act entitled "An Act to provide for the regulation and incorporation of insurance companies and to regulate the transaction of insurance business in this state," approved April 3, 1902, and known as Ch. 134 of the Laws of 1902 of the State of New Jersey, as amended, N.J.S.A. 17:17-1 et seq.

 3. The certificate of incorporation was dated January 25, 1926, approved by the Attorney General on January 26, 1926, filed in the office of the Department of Banking and Insurance on January 28, 1926, and the company commenced business on March 9, 1926. At all times plaintiff has been under the direct supervision and control of the Commissioner of Banking and Insurance for the State of New Jersey.

 4. In February, 1935, the Commissioner of Internal Revenue assessed the plaintiff a capital stock tax for the period July 1, 1932, to June 30, 1933, in the amount of $6,034, together with interest in the amount of $1,142.44, making a total assessment of $7,176.44.

 5. The Commissioner of Internal Revenue, in making such assessment, purported to act under the provisions of Section 215 of the Act of June 16, 1933, the National Industrial Recovery Act, 48 Stat. 207, as amended, and assessed said tax upon the theory that the plaintiff was not entitled to the exemption from capital stock tax provided for companies which qualified under the applicable revenue statute as insurance companies. On January 23, 1935, the Commissioner of Internal Revenue denied plaintiff's claim for exemption from the provisions of said Section 215 of the Act of June 16, 1933, the National Industrial Recovery Act, as amended, which denial was affirmed by letter of August 5, 1935.

 6. On August 22, 1935, plaintiff paid, under protest, said assessment of $6,034, together with interest and penalties in the amount of $1,735.68, making a total payment of $7,769.68, to Charles V. Duffy, defendant's testator, who was at that time the Collector of Internal Revenue of the United States for the Fifth District of New Jersey.

 7. On August 15, 1939, claim for refund of said capital stock assessment was filed by plaintiff with the Collector of Internal Revenue of the United States for the Fifth District of New Jersey.

 9. In August, 1935, the Commissioner of Internal Revenue made a capital stock assessment against the plaintiff for the period July 1, 1933, to June 30, 1934, in the amount of $6,122, together with interest in the amount of $781.93, making a total assessment of $6,903.93.

 10. The Commissioner of Internal Revenue, in making such assessment purported to act under the provisions of Section 215 of the Act of June 16, 1933, the National Industrial Recovery Act, as amended, and Section 701 of the Revenue Act of 1934, *fn2" and assessed said tax upon the theory that the plaintiff was not entitled to the exemption from capital stock tax provided for companies which qualified under the applicable revenue statute as insurance companies.

 11. On December 7, 1935, plaintiff paid, under protest, said assessment of $6,122, together with interest and penalties in the amount of $1,140.75, making a total of $7,262.75, to the said Charles V. Duffy, the defendant's testator, who was at that time the Collector of Internal Revenue of the United States for the Fifth District of New Jersey.

 12. On December 2, 1939, claim for refund of said capital stock assessment was filed by plaintiff with the Collector of Internal Revenue of the United States for the Fifth District of New Jersey.

 13. In May, 1938, the Commissioner of Internal Revenue made a capital stock assessment against the plaintiff for the period July 1, 1934, to June 30, 1935, in the amount of $5,915, together with interest in the amount of $1,061.38, making a total assessment of $6,976.38.

 14. The Commissioner of Internal Revenue, in making such assessment, purported to act under the provisions of Section 215 of the Act of June 16, 1933, the National Industrial Recovery Act, as amended, and Section 701 of the Revenue Act of 1934, *fn3" and assessed said tax upon the theory that the plaintiff was not entitled to the exemption from capital stock tax provided for companies which qualified under the applicable revenue statute as insurance companies. On April 8, 1938, the Commissioner of Internal Revenue denied plaintiff's claim for exemption from the provisions of said Section 215 of the Act of June 16, 1933 *fn4"

 15. On July 5, 1938, plaintiff paid, under protest, said assessment of $6,915, together with interest and penalties in the amount of $1,061.38, making a total payment of $6,976.38, to Thomas C. Smith, who was at that time the Acting Collector of Internal Revenue of the United States for the Fifth District of New Jersey.

 16. On December 2, 1939, claim for refund of said capital stock assessment was filed by plaintiff with the Collector of Internal Revenue of the United States for the Fifth District of New Jersey.

 17. In March, 1938, the Commissioner of Internal Revenue made a capital stock assessment against the plaintiff for the period July 1, 1935, to June 30, 1936, in the amount of $3,500, together with interest in the amount of $365.53, making a total of $3,865.53.

 18. The Commissioner of Internal Revenue, in making such assessment, purported to act under the provisions of Section 215 of the Act of June 16, 1933, *fn5" and assessed said tax upon the theory that the plaintiff was not entitled to the exemption from capital stock tax provided for companies which qualified under the applicable revenue statute as insurance companies. On April 8, 1938, the Commissioner of Internal Revenue denied plaintiff's claim for exemption from the provisions of said Acts.

 19. On May 16, 1938, plaintiff paid, under protest, said assessment of $3,500 together with interest and penalties in the amount of $365.53, making a total payment of $3,865.53, to the said Thomas C. Smith, defendant, who was at that time the Acting Collector of Internal Revenue of the United States for the Fifth District of New Jersey.

 20. On December 2, 1939, claim for refund of said capital stock assessment was filed by plaintiff with the Collector of Internal Revenue of the United States for the Fifth District of New Jersey.

 21. In March, 1938, the Commissioner of Internal Revenue made a capital stock assessment against the plaintiff for the period July 1, 1936, to June 30, 1937, in the amount of $1,946, together with interest in the amount of $86.48, making a total assessment of $2,032.48.

 22. The Commissioner of Internal Revenue, in making such assessment, purported to act under the provisions of Section 215 of the Act of June 16, 1933, *fn6" and assessed said tax upon the theory that the plaintiff was not entitled to the exemption from capital stock tax provided for companies which qualified under the applicable revenue statute as insurance companies. On April 8, 1938, the Commissioner of Internal Revenue denied plaintiff's claim for exemption from the provisions of said acts.

 23. On May 16, 1938, plaintiff paid, under protest, said assessment of $1,946, together with interest and penalties in the amount of $86.48, making a total payment of $2,032.48, to the said Thomas C. Smith, defendant, who was at that time the Acting Collector of Internal Revenue of the United States for the Fifth District of New Jersey.

 24. On December 2, 1939, claim for refund of said capital stock assessment was filed by plaintiff with the Collector of Internal Revenue of the United ...


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