The opinion of the court was delivered by: GOURLEY
(1) The statute of limitations bars the amended complaint since it sets up a new cause of action.
(2) The original complaint is fatally defective in that:
(a) It does not set forth that the tax collector, to whom the income tax was paid, was dead at the time the proceeding was filed.
(b) It does not set forth sufficient allegations of fact to establish the jurisdiction of the Court.
In view thereof, comment should be made relative thereto.
It is a matter of common knowledge that the Collector of Internal Revenue, to whom the tax was paid in this district, has died.
No useful purpose could have been served by setting forth in the original complaint facts of which the court had judicial knowledge.
I am cognizant of the fact that under Section 24(20) of the Judicial Code, as amended, 28 U.S.C.A. § 41(20) (1948 Revised Judicial Code, 28 U.S.C.A. § 1346), suit against the United States to recover internal revenue taxes wrongfully collected, in excess of $ 10,000, will not lie in the District Court unless the overpayment was collected by a collector who could have been sued personally but who, when the proceeding began, was dead or out of office. Lowe Brothers Co. v. United States, 304 U.S. 302, 58 S. Ct. 896, 82 L. Ed. 1362.
The fact that the United States is a proper party defendant obviates the necessity of making specific reference to the Collector of Internal Revenue. United States v. Pacific Electric Ry. Co., 9 Cir., 157 F.2d 902, certiorari denied 330 U.S. 849, 67 S. Ct. 1094, 91 L. Ed. 1293; Powell v. United States, 9 Cir., 123 F.2d 472.
I believe the original complaint was sufficient to inform the government as to the nature of the claim upon which the plaintiff supported its right to recover. The statutory provisions of the Judicial Code, Sec. 24(20), 28 U.S.C.A. § 41(20) has been satisfactorily met. Edwards et al. v. United States, 9 Cir., 163 F.2d 268; United States v. A. S. Kreider Co., 313 U.S. 443, 61 S. Ct. 1007, 85 L. Ed. 1447.
The power of the federal courts to permit amendment of pleadings as to form, at any stage of a case, is to be liberally construed to avoid technical delay in determination of cases on their merits. United States v. Koike, 9 Cir., 164 F.2d 155.
Since the amended complaint was nothing more than a more detailed statement of the allegations which appear in the original complaint, and it did not lay the ground for a new and separate cause of action, separate and apart from that set forth in the original complaint, but was merely explanatory thereof, the government's objection has absolutely no merit.
This proceeding involves two suits for the recovery of federal income taxes paid for the taxable year 1941. Civil Action 7333 is for the recovery of $ 21,407.57, principal amount of tax, plus interest thereon, and Civil Action 7343 is for the recovery of $ 14,519.51, principal amount of tax, plus interest thereon. The two cases are practically identical in that each involves trusts created by the same donor with the same ...