Van Antwerp v. United States

Plaintiff taxpayer, William C. Van Antwerp, sues for a refund of $62,690.09 income tax paid for the calendar year 1928. His tax return for that year disclosed a tax due of $5,981.88 which was paid without dispute. An audit by a government agent in 1930 revealed a deficiency ($58,-124.55 tax and $4,565.54 interest) which was collected in 1931 by distraining without notice of deficiency as required by section 272(a) of the 1928 Revenue Act ( 26 U.S.C.A. § 272 and note).

I. The first issue arises when plaintiff asserts such collection was absolutely void because made without notice of deficiency and entitled him to a refund of the amount so collected regardless of whether any tax was due. The government interposes two defenses: First, the lack of notice was merely an irregularity totally insufficient to vitiate the collection, and the taxpayer’s recovery is limited to the amount of overpayment he can show; second, the taxpayer waived his right to receive notice.

It appears that the contention of the taxpayer is without merit. He relies -upon two cases to establish the proposition of absolute voidness: Angier Corp. v. Commissioner, 17 B.T.A. 1376 ; Id. (C.C.A.) 50 F.(2d) 887 ;…