BARTOLOME VENUS, PLAINTIFF AND APPELLEE, VS. JUAN POSADAS, JR., AS COLLECTOR OF INTERNAL REVENUE, DEFENDANT AND APPELLANT.

This action was instituted in the Court of First Instance of the Province of
Capiz on July 27, 1928, by Bartolome Venus, for the purpose of recovering from
the Collector of Internal Revenue the sum of P1,641.60 paid to him, under
protest, on March 19, 1924, in the character of internal revenue tax. Upon
hearing the cause the trial judge gave judgment in favor of the plaintiff
requiring the Collector of Internal Revenue to refund to the plaintiff the
amount so paid by him under protest, without pronouncement as to costs. From
this judgment the Collector of Internal Revenue appealed.

The only defense relied upon by the appellant and necessary to be considered
upon this appeal is that of prescription. From the agreed statement of facts it
is apparent that more than four years elapsed from the time the tax, for the
recovery of which this action was instituted, was paid under protest until the
date when the action to recover the money was instituted. In section 1579 of the
Administrative Code the period of only two years is allowed after the payment of
an internal revenue tax under protest within which action may be brought for its
recovery. The lower court held that the provision referred to is not absolute
but only permissive, and the case of Zaragoza vs. Alfonso (46 Phil., 159), is
cited as a case in which the prescriptive provision was ignored. It is true that
in the case mentioned recovery of a tax involuntarily paid was permitted after
more than two years had elapsed. But the tax involved in the case cited was not
an internal revenue tax, and the provision upon which reliance is here placed by
the defendant is found in the provisions of the Administrative Code relative to
the collection of internal revenue taxes. Also, in Zaragoza vs. Alfonso, supra,
the question of prescription was not raised, and the decision there made is not
pertinent to the point now under consideration.

The period of two years allowed in section 1579 of the Administrative Code is
taken from the United States Revised Statutes, and the courts of the United
States have not hesitated to apply said provision to cases arising under the
statute (Maryland Casualty Co. vs. U. S., 251 U. S., 342). There is no good
reason why it should not be given effect in this jurisdiction. We accordingly
hold that the right to recover the tax which is the subject of this action has
prescribed.

The judgment appealed from must be reversed and the defendant, Juan Posadas, Jr. as Collector of Internal Revenue, will be absolved from the complaint. So
ordered, without costs.

Malcolm, Villamor, Ostrand, Johns, Romualdez and Villa-Real,
JJ., concur.