The opinion of the court was delivered by: SCHOONMAKER
This is an action in equity, wherein plaintiff is seeking to have a taxing act of Congress declared unconstitutional, or in lieu of that, to enjoin the Collector of Internal Revenue from refusing to accept an amended capital stock return from plaintiff, and from refusing to compute its taxes on such amended return.
The defendant has moved to dismiss the bill on the following grounds:
(1) The bill fails to state a cause of action cognizable in equity.
(2) No case or controversy is presented within the power of the federal courts.
(3) The plaintiff has an adequate remedy at law.
The facts stated in the bill of complaint may be briefly summarized as follows:
Plaintiff corporation, on July 29, 1936, filed with defendant, as Collector of Internal Revenue, a capital stock tax return, valuing its capital stock at $600,000, and paid $600, the tax due on that valuation.
September 4, 1936, plaintiff tendered a second return valuing its capital stock at $1,000,000, and tendered a check for $400 in payment of the additional tax liability shown on this second return. The Collector declined to accept this return, and the accompanying check, returning them to plaintiff. On September 14, 1936, the plaintiff again tendered this second return to Collector, and also the check for $400. The Collector sent them to the Commissioner of Internal Revenue, who approved the action of the Collector in rejecting this second return. The Commissioner returned to plaintiff the check of $400, but retained the second return as an office record.
On these facts the plaintiff seeks to have the second return filed as an amended return, and its check for $400 accepted in payment of its tax liability, by asking that the Collector be enjoined from refusing to accept. For further relief, the plaintiff asks that the taxing act be declared unconstitutional. The taxing act involved in this suit is the Revenue Act of 1935, c. 829, 49 Stat. 1014. The applicable section (section 105, 49 Stat. 1017, as amended by Act June 22, 1936, § 401, 49 Stat. 1733 (26 U.S.C.A. § 1358a) is as follows:
"Sec. 105. Capital stock tax
"(d) Every corporation liable for tax under this section shall make a return under oath within one month after the close of the year with respect to which such tax is imposed to the collector for the district in which is located its principal place of business or, if it has no principal place of business in the United States, then to the collector at Baltimore, Maryland. Such return shall contain such information and be made in such manner as the commissioner with the approval of the Secretary may by regulations prescribe. The tax shall, without assessment by the Commissioner or notice from the collector, be due and payable to the collector before the expiration of the period for filing the return. If the tax is not paid when due, there shall be added as part of the tax interest at the rate of 6 per centum per annum from the time when the tax became due until paid. * * *
"(f) For the first year ending June 30, in respect of which a tax is imposed by this section upon any corporation, the adjusted declared value shall be the value, as declared by the corporation in its first return under this section (which declaration of value cannot be amended), as of the close of its last income-tax taxable year ending at or prior to the close of the year for which the tax is imposed by this section (or as of the date of organization in the case of a corporation ...