Opinion of the Court

Germany was unable to make any payment and there were not sufficient funds in the hands of the Alien Property Custodian, even when there was added thereto a large sum which it was expected would be paid for the German ships and radio stations, to pay both the German claimants and the American claimants at once. Finally the matter was referred to the Ways and Means Committee, which prepared a bill, and a statute was enacted more than twenty-three pages in length which contained provisions for the disposition of the property which was held by the Alien Property Custodian and created a fund out of which the American claimants could be paid. This statute was called the War Claims Settlement Act and was approved March 10, 1928, 45 Stat. 254.

A consideration of the facts above stated makes it plain that until the law made provision for return of the property none of the alien parties whose property had been seized had any enforceable rights or interest either in the property or against the Government by reason of its being so held and whenever this matter has been presented to the courts they have so decided. Whatever rights the former owners subsequently obtained were through and under the War Claims statute which was purely an act of grace on the part of our Government. The United States could have retained the property seized, and disposed of it as it saw fit, applied it on taxes, or appropriated it entirely and had it covered into the miscellaneous receipts of the Treasury, regardless of the statutes limiting the collection of taxes. Whatever it did with the money, the former owners would have had no cause of action against the Government until some statute was enacted making special provision for the return of the property or a portion of it and then only upon the conditions expressed in such statute.

It is argued on behalf of the plaintiffs that the War Claims Act did not repeal the provisions of the statutes with reference to the assessment and collection of taxes and that as these statutes were not repealed, they were not only in force at the time when the Alien Property Custodian turned the money involved over to the Commissioner but applied directly to the funds in the hands of the Alien

Opinion of the Court

Property Custodian, and consequently the disposition of these funds was controlled by the general statutory provisions with reference to taxes. This is clearly an erroneous conclusion. We have already shown that until the War Claims Act became a law the former owners of the property seized had no enforceable rights whatever therein and when this act was passed they acquired no rights except those granted thereby. The War Claims Act made provision for the payment of taxes and the Government having complete right to retain the property, none of the taxing statutes had any application except as specially stated in the act itself.

At this point it should be noted that the plaintiffs did not file the only claim for refund made in this case. It was filed by the Alien Property Custodian. Why, we do not know. It would seem self-evident that the Alien Property Custodian was not the agent for the former owner of the property. He was the agent of the Government itself and did not act for the plaintiffs in filing the claim for refund. See Opinion of Attorney General, Vol. 32, pp. 249, 253. The incongruous situation is presented where an agent of the Government files a claim against the Government. If anyone was authorized to file a claim for refund, it would seem to be the plaintiffs; yet the plaintiffs had not paid the tax, it was paid by the Alien Property Custodian out of money over which the Government had complete control and the right to appropriate as it saw fit. These features of the case show how difficult if not impossible it is to apply the general provisions of the taxing statutes to the case now before us. The attempt to do so leads intc all sorts of inconsistencies and presents one of the many reasons why we think Congress had no intention of restricting the right of the Government to retain money or property which had been seized by the Alien Property Custodian by applying the general statutes with reference to the assessment and collection of taxes.

What has been said above, we think shows plainly that plaintiffs' case depends not upon whether the provisions of the revenue laws with reference to the assessment and collection of taxes were repealed by the War Claims Settle

Opinion of the Court

ment Act but upon whether that statute made these provisions applicable in determining the amount which the claimants should receive. The taxes involved were not assessed and collected within the period prescribed by the general provisions of the revenue laws and if they are applicable in determining whether the money involved in the suit can be retained by the Government it is obvious that plaintiffs are entitled to recover. On the other hand, if the War Claims Settlement Act, as we think, provided that the taxes should be computed, as if the property had not been seized by the Alien Property Custodian, and then paid without any further restrictions, the plaintiffs have no foundation for their suit.

Plaintiffs rely largely on section 24 of the Trading with the Enemy Act which was amended by the War Claims Settlement Act in section 18 thereof which was headed "Taxes." Section 24 of the Trading with the Enemy Act was made subdivision (a) by the amendment and subdivisions (b) to (f) inclusive were added. Section 24 (now subdivision (a)), among other things, provided:

The Alien Property Custodian is authorized to pay all taxes * heretofore or hereafter lawfully assessed * against any money or other property held by him

It did not direct the Alien Property Custodian to pay or turn over anything to the former owners of the property but merely authorized the payment of certain taxes. Subdivision (b) of the amendment reads as follows:

(b) In the case of income, war-profits, excess-profits, or estate taxes imposed by any Act of Congress, the amount thereof shall, under regulations prescribed by the Commissioner of Internal Revenue with the approval of the Secretary of the Treasury, be computed in the same manner (except as hereinafter in this section provided) as though the money or other property had not been seized by or paid to the Alien Property Custodian, and shall be paid, as far as practicable, in accordance with subsection (a) of this section. Pending final determination of the tax liability the Alien Property Custodian is authorized to return, in accordance with the provisions of this Act, money or other property in any trust in such amounts as may be determined, under regulations prescribed by the Commis

Opinion of the Court

sioner of Internal Revenue with the approval of the Secretary of the Treasury, to be consistent with the prompt payment of the full amount of the internal

revenue taxes.

It is assumed by plaintiffs that by amending section 24 of the Trading with the Enemy Act in this manner a limitation was placed upon the amount which the Government would withhold for taxes and that the money or property which had been seized would be returned in its entirety without any deduction on account of taxes not lawfully assessed. We do not think this construction accords with the language of the amendment and are clear that it is not in harmony with the intention of Congress. The amendment (b) quoted above does not pertain to the assessment of taxes in any way. On the contrary it so carefully avoids the use of the word "assessment" that we think it evident Congress took into consideration the fact that there would be taxes due and unpaid but never assessed. Instead of saying that taxes shall not be paid unless lawfully assessed, it states they shall "be computed in the same manner (except as hereinafter in this section provided) as though the money or other property had not been seized by or paid to the Alien Property Custodian, and shall be paid, as far as practicable, in accordance with subsection (a) of this section." [Italics supplied.] It is expressly provided that the taxes shall be paid, and the words "as far as practicable" did not make the payment depend upon the time when an assessment had been made for this was not a matter of practicability. These words evidently apply to the further provision contained in subdivision (a) that "such taxes shall be paid out of the money or other property

against which such taxes are assessed or (if such money or other property is insufficient) out of any other money or property held for the same person." Subdivision (b) recognizes that at the time of its enactment the taxes may not have been computed or assessed and made the further provision that "pending final determination of the tax liability the Alien Property Custodian is authorized to return, in accordance with the provisions of this Act, money or other property in any trust in such amounts as may be

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determined, to be consistent with the prompt payment of the full amount of the internal-revenue taxes." This provision evidently contemplates the payment of the "full amount" of the taxes without any restriction or limitation and the return of the property to the claimant less taxes and other charges the deduction of which was authorized.

In addition to what is stated above, it would seem that there is no reason at all for the enactment of subdivision (b) if only taxes lawfully assessed-that is, assessed in accordance with the general provisions of the taxing acts—were to be paid. An assessment must always be preceded by a computation of the tax, and where the tax had already been assessed in accordance with law no further computation was necessary. As to the taxes that had not been so assessed, there would be no use in making the computation if the construction for which plaintiffs contend is correct and the subsection could just as well have been entirely omitted. In this connection it should be kept in mind that taxes become due without being assessed.

We think the wording of subdivision (b) requires that where taxes were due from the aliens whose property had been seized they should be computed and withheld without regard to the statute of limitations. If it should be conceded for the sake of the argument that the statute was ambiguous, the surrounding circumstances clearly show that such must have been the intent of Congress. This money or property was turned over purely as an act of grace. In so doing, the United States was not standing upon its wartime rights but placed the matter on a moral and equitable plane highly favorable to the claimants. Having done this, it seems hardly conceivable that it was intended to turn this property back to the former owners without collecting taxes justly due from them. Our Government was intending to do exact justice to the alien claimants and it would exact no more than justice in requiring these taxes to be paid. Where the intent is manifest and the language ambiguous the intent must control.