Opinion of the Court

each income taxable year. Congress expressly declared its intent that the original declared value in the capital stock tax return for the first taxable year under the statute should be used in determining the capital tax for subsequent years and that the adjusted declared value as of the close of the preceding income tax year should be used in determining the excess profits for each year. The amount of $12,420.13 sued for represents the alleged overpayment of $13,705.09 excess-profits tax, and $564.03 income tax, and interest of $150.01 paid for the calendar year 1933 less $1,999, capital stock tax admitted to be due and tendered by plaintiff for the first taxable year ending June 30, 1933.

In the case at bar, the plaintiff, before it had made a complete investigation for the purpose of determining the value of its capital stock, prepared and filed a capital stock tax return on August 4, 1933, in which it stated the value of its capital stock in the amount of $1,500,000. This return was prepared by plaintiff's president, who arrived at the amount of this value on the basis of the estimated earnings of the corporation, but at the time he did not have before him an accurate audit and statement of the earnings of the corporation; a complete audit of the books and records of the corporation by a qualified accountant had not at that time been made. Plaintiff's president did not at that time have full knowledge of the actual facts. Shortly afterward, and still within the time allowed by statute and the Commissioner's regulations authorized and made pursuant thereto within which the plaintiff could file its capital stock tax return for the year ending June 30, 1933, and make the declaration of value of the capital stock as required by the statute, the plaintiff after a complete audit of its books and on the basis of the earnings for the full year which it capitalized, determined and declared to the Commissioner in a corrected capital stock tax return, in lieu of and as a substitute for the return theretofore submitted on August 4, 1933, a declared value of its capital stock of $3,499,999 to be used as the declared value in its return for the first year and subsequent years for the purpose of the capital stock and excess-profits tax. This declared value, which was set forth in a corrected capital stock tax return, was made and the

Opinion of the Court

corrected return was filed with the collector September 23, 1933, before the expiration of time allowed by the statute and the regulations for filing the 1933 return and for declaring the value of capital stock for its first taxable year for the purpose of the capital stock and excess-profits tax imposed by sections 215 and 216. The time within which to make its declaration of value of its capital stock did not expire until September 29, 1933, and we think, in the circumstances, the proper interpretation of the statute, in the light of the facts and the reports of the Congressional committees is that plaintiff could, before the expiration of the time for filing its capital stock tax return, proceed to file with the Commissioner its final and corrected declaration of value of its capital stock in a corrected capital stock tax return, even though the corporation had filed a capital stock tax return in which a different value had been declared.

8

With respect to the first taxable year in which the statute required the corporation to make a declaration of the value of its capital stock, we think it is clear that the statute intended that a taxpayer should have the right until the expiration of the time for filing its capital-stock tax return for that year to make its declaration of the value of its capital stock which was to be thereafter binding and used as a basis for the determination of the excess-profits tax in its first and subsequent income-tax years ending after the close of the first capital-stock tax year. From this the reference in subdivision (f) of section 215 of the National Industrial Recovery Act with respect to "the value as declared by the corporation in its first return under this section" should be interpreted to mean the value of the capital stock as finally declared by the corporation for its capital-stock taxable year within the time allowed by statute and the regulations for making its capital-stock tax return for such year. This interpretation conforms to the declared purpose of the Act.

In the Conference Report on Section 701 of the Revenue Act of 1934 (48 Stat. 680, 769), which carried forward the provisions of section 215 of the National Industrial Recovery

* Senate Committee Report No. 114, 73rd Con., 1st Sess. Conference Report No. 13185.

Opinion of the Court

Act (Congressional Record, Vol. 78, Part 7, p. 7827), it was said by the managers on behalf of the House of Representatives that "For the first year the tax is measured by the value of the capital stock as declared by the corporation as of the close of its last taxable year ending on or before June 30, 1934. The value of the capital stock having been declared for the first year, such value may not be subsequently amended." Inasmuch as the primary purpose of the statute was to require the taxpayer to make a declaration of the value of its capital stock at the close of its last capital-stock tax year ending on or before June 30, 1934, and to be subsequently bound thereby in subsequent capital-stock tax years and each income-tax year ending after the close of the first taxable capital-stock year, no reasonable rule of interpretation requires the conclusion that the corporation may not, within the time allowed for filing a capital stock-tax return for the first year, declare the value of its stock upon which it intends to stand and be bound in subsequent years in a timely corrected or amended return disclosing a declared value different from the value previously stated in a capital stock-tax return filed for such year. Glenn v. Oertel Company, 97 Fed. (2d) 495. The statute was not dealing specifically with returns as such, but with value and taxable years. Plaintiff is entitled to recover and judgment in its favor for $12,420.13 will be entered. It is so ordered.*

WHALEY, Judge; WILLIAMS, Judge; GREEN, Judge; and BOOTH, Chief Justice, concur.

ORDER

This case comes before the court on stipulation of the parties filed June 16, 1939, in which it is stated that they "stipulate and agree that judgment should be entered for the net amount of $10,994.69 instead of $12,420.13 as ordered by the court", and "that interest on the net amount of $10,994.69 should be computed on the following amounts from the following dates: $1,223.51 from January 4, 1936; $4,057.07 from

(Defendant's second motion for new trial overruled, January 8, 1940. See Haggar Company v. Helvering, 308 U. S., decided, January 2, 1940.)

Syllabus

December 18, 1934; $4,057.07 from September 18, 1934; $1,657.04 from June 15, 1934." Therefore, on consideration thereof, it is ordered this 19th day of June 1939, that the judgment entered in this case May 29, 1939, be, and the same is, vacated and withdrawn and a new judgment in favor of the plaintiff be this day entered in the sum of ten thousand, nine hundred ninety-four dollars and sixty-nine cents ($10,994.69), with interest on $1,223.51 from January 4, 1936, on $4,057.07 from December 18, 1934, on $4,057.07 from September 18, 1934, and on $1,657.04 from June 15, 1934, to such date as the Commissioner of Internal Revenue may determine in accordance with the provisions of section 177 (b) of the Judicial Code, being a part of the Revenue Act of 1928.

RIO CAPE LINE, LIMITED, v. THE UNITED STATES [No. 43281. Decided June 5, 1939]

On the Proofs

Immigration Act; notice to owner or agent of vessel.-Where a British ship, Chinese Prince, upon entering Boston harbor, was found to have on board 20 members of the Chinese crew who were designated by an immigration inspector as mala fide seamen, and where an order issued by the immigration inspector for the detention on board ship of the said 20 alien seamen was accepted on behalf of the master of the ship by the purser, but said order was not served on the owner of the vessel, nor its agents, it is held that the fine imposed upon the agents, and paid by them, for the escape of 15 of the said alien seamen, was illegally imposed.

Same.-Notice served only on the master of a vessel does not impute any duty to the agent or to the owner. Compagnie Generale Transatlantique v. Elting, 298 U. S. 217, and cases therein referred to, cited.

Fines unlawfully collected.-Voluntary payment of fines, if unlawfully collected, will not prevent recovery.

Same; involuntary payment.-Deposit of bond, covering liability for fine that might be imposed, in order to obtain clearance of vessel, and subseqent payment, were not such voluntary acts as to prevent recovery.

Reporter's Statement of the Case

Immigration Act; proper notice of detention.-Notice of liability for the fine, directed to the agents of the owner, and submission by the agents of a letter from the master showing why, in their opinion, no penalty should be imposed, did not constitute action that validated the failure to make a foundation for the case by a proper service of the notice of detention.

Jurisdiction.-The cases of Algoma Lumber Co., 305 U. S. 415; Alabama, 282 U. S. 502, and Baltimore Mail Steamship Co., 76 Fed. (2d), 582, distinguished.

Same.-Suits to recover penalties under the immigration statutes are maintainable under the Tucker Act.

The Reporter's statement of the case:

Mr. Delbert M. Tibbetts for the plaintiff. Mr. Charles R. Hickox and Kirlin, Campbell, Hickox, Keating & McGrann were on the briefs.

Mr. W. S. Ward, with whom was Mr. Assistant Attorney General Sam E. Whitaker, for the defendant. Mr. Maurice W. Hibschman was on the brief.

The court made special findings of fact as follows:

The plaintiff is a British corporation and is and was, at all material times, the owner and operator of the steamship Chinese Prince. It owns the claim sued on free from any offsets or credit, and otherwise qualifies for the maintenance of a suit in this court.

The Chinese Prince arrived at the Port of Boston, Massachusetts, on September 30, 1929, with an alien Chinese crew. Shortly after the arrival of the vessel, and on the same day, an immigration inspector at Boston purporting to act in accordance with section 20 of the Immigration Act of 1924, and as a result of some information received by him, issued an order for the detention of twenty members of the crew, named therein and designated as mala fide seamen. This order was accepted on behalf of the master by the purser, who receipted for it, "Thomas Goldsworthy, purser, for master."

The master acted upon the order, and issued instructions that no shore leave be granted to any of the members of the crew listed in it.