Allis v. La Budde, 7857.
| Decision Date | 22 October 1942 |
| Docket Number | No. 7857.,7857. |
| Citation | 131 F.2d 78 |
| Parties | ALLIS v. LA BUDDE et al. |
| Court | U.S. Court of Appeals — Seventh Circuit |
Arthur W. Fairchild, Frederic Sammond, and Theodore C. Bolliger, all of Milwaukee, Wis., for plaintiff-appellant.
Robert R. Barrett, of Washington, D. C., and Samuel O. Clark, Jr., and J. Louis Monarch, Asst. Attys. Gen., for defendants-appellees.
Before EVANS and SPARKS, Circuit Judges, and LINDLEY, District Judge.
Appellant moves to have costs taxed in her favor in a case heretofore decided by this court, June 15, 1942.
The suit is the one in which appellant sought to recover for an alleged overpayment of income taxes charged against a large sum received by her as an annual payment on an insurance policy which had matured on the death of her husband. The District Court held that because the insured exercised his option to have the policy proceeds paid in annual installments rather than by a lump sum upon his death, and the amounts already received by the beneficiary were about double the face of the policy, the payments represented increment on the proceeds and were taxable as amounts held by the insurer under an agreement to pay interest thereon. We reversed the judgment.
Because the suit had been filed against the collector and continued against his executors upon his death prior to trial, the clerk of this court, in issuing the mandate, omitted the provision for payment of costs customary in cases between private individuals, applying Rule 24(4), which provides that: "No costs shall be allowed in this court either for or against the United States, except where specially authorized by statute and directed by the court."
Appellant asserts that her case is not one for the application of Rule 24(4) for the reason that her suit was not against the United States, but instead was a personal one against the collector, and the fact that the Government will assume payment of the judgment upon issuance of a certificate of probable cause does not change its personal character. The Government has filed no response of any kind, hence does not contest appellant's application, although appellant states that counsel refused to sign a stipulation for inclusion of costs in the judgment, advising that the matter of taxation was considered to be within the discretion of the court and suggesting that appellant present her motion for allowance to the court.
While the distinction between suits directly against the Government, for refund of excess taxes, and suits against the officer who collected those taxes, seems to be a very arbitrary one, nevertheless it is a distinction which has been quite uniformly made.
In Sage v. United States, 250 U.S. 33, 39 S.Ct. 415, 416, 63 L.Ed. 828, Mr. Justice Holmes says: ...
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Epsen Lithographers v. O'MALLEY
...costs as provided by law. See 26 U.S.C.A. Int.Rev. Code, § 3770 (b) (1, 2); Section 3771 (a), (b) (2); 28 U.S.C.A. § 284; Allis v. LaBudde, et al., 7 Cir., 131 F.2d 78; Samson Tire & Rubber Corp. v. Rogan, 9 Cir., 140 F.2d 457; Carter v. Liquid Carbonic Pacific Corporation Ltd., 9 Cir., 97 ......
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Lichter Foundation, Inc. v. Welch
...barring or limiting the assessment of costs against the Collector he is entitled to the costs claimed by him in this action. Allis v. La Budde, 7 Cir., 131 F.2d 78; Samson Tire & Rubber Corp. v. Rogan, 9 Cir., 140 F.2d 457. The appellee makes two answers to this (1) Rule 54(d) provides that......
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Williams v. Patterson
...will be awarded against the government officers". Courts of Appeal in other circuits have reached the same conclusion. Allis v. LaBudde, 7 Cir., 1942, 131 F.2d 78; Samson Tire & Rubber Corporation v. Rogan, 9 Cir., 1943, 140 F.2d 457; Lichter Foundation v. Welch, 6 Cir., 1959, 269 F.2d The ......
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