Opinion
No. 8571.
May 6, 1941.
Appeal from the United States District Court for the Northern District of Ohio, Western Division; Frank Le Blond Kloeb, Judge.
Action for injunction by James W. Murphy doing business as LaFrance Toledo Company against Charles H. Graves, in dividually and as Collector of Internal Revenue for Ohio. During the pendency of the action the defendant died and the case was revived against James A. Brady, acting Collector of Internal Revenue for the Tenth Ohio Collection District. From a judgment dismissing the action plaintiff appeals.
Affirmed.
William O. Ballard and Denman, Miller Beatty, all of Toledo, Ohio, for appellant.
E.B. Freed, U.S. Atty., of Cleveland, Ohio, and John Paul Manton, Asst. U.S. Atty., of Toledo, Ohio, for appellee.
It appearing from the record that appellee, Charles H. Graves, Collector of Internal Revenue for the Tenth Collection District of Ohio, having died during the pendency of this action and that James A. Brady, Acting Collector for said District, having succeeded him, it is ordered that this cause be revived and hereafter proceed against James A. Brady, Acting Collector of Internal Revenue for the Tenth Ohio Collection District.
It further appearing from the record that appellant, James W. Murphy, doing business as LaFrance Toledo Company, seeks herein to restrain the assessment or collection of taxes against him by the appellee, James A. Brady, Acting Collector, made under the color of his office, and it further appearing that appellant seeks a declaratory judgment declaring his rights and legal liability to pay taxes proposed to be assessed against him by appellee, and it appearing that no fact is in the record showing extraordinary and entirely exceptional circumstances making inapplicable Section 3224 of the Revised Statutes, Title 26 U.S.C.A. Int.Rev. Code, § 3653, which prohibits suits to restrain the assessment or collection of taxes made by Internal Revenue officers under color of their offices, (Snyder v. Marks, 109 U.S. 189, 3 S.Ct. 157, 27 L.Ed. 901), and it appearing that Judicial Code, Section 274d, 49 Statutes at Large 1027, Title 28 U.S.C.A. § 400, withholds from the jurisdiction of Federal Courts the right to entertain a declaratory judgment action with respect to Federal taxes,
It is hereby ordered that the decree of the District Court be affirmed.