255 F.2d 516 (5th Cir. 1958), 17066, United States v. State Road Dept. of Florida

Docket Nº:17066.
Citation:255 F.2d 516
Party Name:UNITED STATES of America, Appellant, v. STATE ROAD DEPARTMENT OF State of FLORIDA, Appellee.
Case Date:May 16, 1958
Court:United States Courts of Appeals, Court of Appeals for the Fifth Circuit

Page 516

255 F.2d 516 (5th Cir. 1958)

UNITED STATES of America, Appellant,

v.

STATE ROAD DEPARTMENT OF State of FLORIDA, Appellee.

No. 17066.

United States Court of Appeals, Fifth Circuit.

May 16, 1958

Charles K. Rice, Asst. Atty. Gen., Carter Bledsoe, Lee A. Jackson, Melva M. Graney, Attys., Dept. of Justice, Washington, D.C., Edith House, Asst. U.S. Atty., Jacksonville, Fla., James L. Guilmartin, U.S. Atty., Miami, Fla., for appellant.

Charles T. Boyd, Jr., Jacksonville, Fla., Richard B. Austin, Tallahassee, Fal., Ross H. Stanton, Jr., Resident Atty., Tallahassee, Fla., State Road Department of the State of Florida, for appellee.

Jennings P. Felix, Seattle, Wash., John J. O'Connell, Atty. Gen., Paul L. Adams, Atty. Gen., Samuel J. Torina, Sol. Gen., Lansing, Mich., T. Carl Holbrook, William D. Dexter, Asst. Attys. Gen., amici curiae.

Before TUTTLE, BROWN and WISDOM, Circuit Judges.

TUTTLE, Circuit Judge.

This appeal presents the question whether the Federal Transportation Tax is applicable to transportation furnished to highway-using vehicles as a part of the state highway system of a ferry operated for a charge by the Florida State Road Department.

The statutes in question are Sections 4271, 4272, 4291 and 6672, of the Internal Revenue Code of 1954, as follows:

' § 4271. Imposition of tax.

'(a) Property other than coal.-- There is hereby imposed upon the amount paid within or without the United States for the transportation of property, except coal, by rail,

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motor vehicle, water, or air from one point in the United States to another, a tax equal to 3 percent of the amount so paid.

* * *

* * *

'(d) By whom paid.-- The taxes imposed by this section shall be paid by the person making the payment subject to the tax.' 26 U.S.C. 1952 ed., Supp. II, Sec. 4271.

' § 4272. Exemptions.

'(a) Not in business for hire.-- The tax imposed under section 4271 shall apply only to amounts paid to a person engaged in the business of transporting property for hire, including amounts paid to a freight forwarder, express company, or similar person, but not including amounts paid by a freight forwarder, express company, or similar person for transportation with respect to which a tax has previously been paid under such section.

'(e) Post Office Department.-- The tax imposed by section 4271 shall not apply to amounts paid to the Post Office Department for the transportation of property.' 26 U.S.C. 19 52 ed., Sup. II, Sec. 4272.

' § 4291. Cases where persons receiving payment must collect tax.

'Every person receiving any payment for facilities for services on which a tax is imposed upon the payor thereof under this chapter, shall collect the amount of the tax from the person making such payment, * * *.' 26 U.S.C. Sec. 4291.

' § 6672. Failure to collect and pay over tax, or attempt to evade or defeat tax.

'Any person required to collect, truthfully account for, and pay over any tax imposed by this title who willfully fails to collect such tax, or truthfully account for and pay over such tax, or willfully attempts in any manner to evade or defeat any such tax or the payment thereof, shall, in...

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