Maloney

Appellee brought suit against the Internal Revenue Collector to recover federal excise taxes assessed and collected under § 213 of the National Industrial Recovery Act, 48 Stat. 206 . After a trial to the court on stipulated facts judgment was awarded in appellee’s favor.

The National Industrial Recovery Act became effective June 16, 1933. § 213(a) imposed an excise tax of 5% upon the receipt of dividends by any person other than a domestic corporation, the tax to be withheld at the source. The section provides that the tax imposed “shall not apply to dividends declared before the date of the enactment of this act.”

On January 16, 1933 appellee’s board of directors at their annual meeting adopted a resolution reading as follows: “Re *994 solved, that the Secretary and Treasurer of this Company be and he is hereby authorized, empowered and directed to pay monthly dividends of % of 1% each month for the year 1933 whenever in his judgment there are moneys available to pay the same and further that whenever in the judgment of said Secretary and Treasurer there are moneys available to increase the amount of said dividends for any month or months thereof, said Secretary and Treasurer…