Monge

The court has before it two motions, the plaintiff’s motion to strike the affidavit of Henry M. Sorrell and the defendant’s motion to dismiss the complaint.

The plaintiff’s motion to strike is granted because in an effort to force a summary trial a party may not use affidavits controverting the allegations of the complaint in connection with a motion to dismiss. Dwyer v. Tracey, D.C., 10 F.R.D. 115 .

The defendant’s motion to dismiss raises the question of this court’s jurisdiction. 26 U.S.C.A. § 3653 (a) provides, “Except as provided in sections 272(a), 871(a) and 1012(a), no suit for the purpose of restraining the assessment or collection of any tax shall be maintained in any court.” The plaintiff seeks to have this court enjoin the defendant from “Selling plaintiff’s property or taking any other action to- collect income taxes, penalties, or interest pursuant to the assessments made against' plaintiff on or about December 28, 1949 and relating to the years 1942 to 1946 inclusive.”

At the outset it must be recognized that the courts have on occasion enjoined collection of taxes despite the mandate of the statute, Hill v. Wallace, 259 U.S. 44 , 42 S.Ct. 453 , 66 L.Ed. 822 ;…