129 F.2d 594 (2nd Cir. 1942), 224, Samara v. United States

Docket Nº:224.
Citation:129 F.2d 594
Case Date:July 06, 1942
Court:United States Courts of Appeals, Court of Appeals for the Second Circuit

Page 594

129 F.2d 594 (2nd Cir. 1942)




No. 224.

United States Court of Appeals, Second Circuit.

July 6, 1942

Page 595

Kenneth Carroad, of New York City (Clifford H. Rich and Lawrence W. Kaufman, both of New York City, on the brief), for appellant.

Mathias F. Correa, U.S. Atty., of New York City (Samuel Brodsky and David McKibbin, 3rd, Asst. U.S. Attys., both of New York City, of counsel), for appellee.

Before L. HAND, SWAN, and FRANK, Circuit Judges.

SWAN, Circuit Judge.

This is an appeal by the plaintiff from a judgment dismissing his complaint in an action for recovery of $264.91 paid by him as compensating taxes upon importations of cotton prior to the Supreme Court's decision in United States v. Butler, 297 U.S. 1, 56 S.Ct. 312, 80 L.Ed. 477, 102 A.L.R. 914, invalidating the statute under which such taxes were collected. After the filing of the complaint and before answer, the defendant moved to dismiss the complaint on the ground that the court lacked jurisdiction because of the insufficiency of the claim for refund. Certified copies thereof and of letters of the commissioner relating thereto were annexed to the motion papers. This

Page 596

motion was granted in an opinion reported in D.C., 29 F.Supp. 880, and resulted in the judgment appealed from.

Title VII of the Revenue Act of 1936, prescribes administrative procedure for the recovery of amounts collected as taxes under the invalidated Agricultural Adjustment Act of 1933. Section 902 of said Title VII, 7 U.S.C.A. § 644, provides that no refund shall be allowed 'unless the claimant establishes to the satisfaction of the Commissioner in accordance with regulations prescribed by him * * * or to the satisfaction of the trial court, ' that he bore the burden of the tax and has not shifted it to another. Section 903, 7 U.S.C.A. 645, provides that no refund shall be allowed unless a claim for refund has been filed by the claimant 'in accordance with regulations prescribed by the Commissioner'; and this is followed by the sentence: 'All evidence relied upon in support of such claim shall be clearly set forth under oath.' The applicable regulations are Articles 201 and 202 of Regulations 96. 1

On June 30, 1937 the appellant filed a timely claim for refund on the prescribed form, P. T. Form 77, verified by his oath. It set forth the several tax payments making up the amount claimed, $264.91, and alleged in the words of section 902 that the burden of the taxes was borne by the claimant and not shifted to another. Concededly the claim was sufficient in every respect except that no evidentiary facts, other than copies of the customs entries, were included in Schedule D in support of such allegation. Paragraph 6 of the instructions, with which compliance is demanded by Article 201 of Regulations 96, provides that 'The facts and evidence, together with exhibits and other data showing the amount of the burden of the tax borne by the claimant and not shifted to other persons, shall be made a part of Schedule D.' And Paragraph 7 of the instructions substantially copies Article 202 of the Regulations. By letter dated November...

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