418 F.2d 586 (9th Cir. 1969), 22801, Autenrieth v. Cullen

Docket Nº:22801.
Citation:418 F.2d 586
Party Name:Neila A. AUTENRIETH et al., Appellants, v. Joseph M. CULLEN, District Director of IRS, et al., Appellees.
Case Date:November 10, 1969
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit

Page 586

418 F.2d 586 (9th Cir. 1969)

Neila A. AUTENRIETH et al., Appellants,


Joseph M. CULLEN, District Director of IRS, et al., Appellees.

No. 22801.

United States Court of Appeals, Ninth Circuit.

November 10, 1969

Page 587

Francis Heisler (argued), of Heisler & Stewart, Carmel, Cal., Peter F. Franck, Berkeley, Cal., for appellants.

Meyer Rothwack (argued), Asst. Atty. Gen., Johnnie M. Walters, Asst. Atty. Gen., Tax Div., Dept. of Justice, Cecil F. Poole, U.S. Atty., Richard L. Carico, Asst. U.S. Atty., for appellees.

Before MADDEN, [*] Judge, United States Court of Claims, DUNIWAY, Circuit Judge, and TAYLOR, [**] District Judge.

DUNIWAY, Circuit Judge:

In this action, 124 plaintiffs seek refunds of federal income taxes paid by each of them, some for 1965, some for 1966, some for both years. Some seek 17% Of the tax paid, some 67%. The District Court dismissed the action, and we affirm.

The District Court had jurisdiction under 28 U.S.C. §§ 1340, 1346(a)(1). 1 Named as defendants are the District Director of Internal Revenue at San Francisco and the Commissioner of Internal Revenue. The parties are agreed, however, that the action should be treated as one against the United States and the trial judge did so treat it. We do likewise. 2

The complaint contains many pages of citations of treaties, including some to which the United States is not a party, of reports of alleged war crimes committed in Viet Nam and other press reports about the Viet Nam War, of claims made by the Viet Cong and by the North Vietnamese government, and of other similar material. Plaintiffs, however, do not ask us to hold that the Viet Nam war is unconstitutional or illegal. Cf. Kalish v. United States, 9 Cir., 1969, 411 F.2d 606, cert. denied, October 13, 1969, 396 U.S. 835, 90 S.Ct. 93, 24 L.Ed.2d 86. The nature of plaintiffs' claims is stated in the complaint by quoting from their refund claims:

'On information and belief I believe the facts constituting the basis of this claim are as follows:

'The United States is engaged in a war in Viet-Nam which is illegal under the Constitution of the United States and under the provisions of the United Nations Charter, the Southeast Asia Collective Defense Treaty and the London Treaty by which the United States subscribed to the Charter of the International

Page 588

Military Tribunal at Nuremberg.


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