Alpine Country Club v. United States, No. 73-1250.

• Court: United States Courts of Appeals. United States Court of Appeals (10th Circuit)
• Citation: 490 F.2d 1278
• Docket Number: No. 73-1250.
• Parties: ALPINE COUNTRY CLUB, Plaintiff-Appellant, v. UNITED STATES of America, Defendant-Appellee.
• Decision Date: 07 January 1974

490 F.2d 1278 (1974)

ALPINE COUNTRY CLUB, Plaintiff-Appellant,
v.
UNITED STATES of America, Defendant-Appellee.

No. 73-1250.

United States Court of Appeals, Tenth Circuit.

Argued and Submitted September 11, 1973.

Decided January 7, 1974.

J. Jay Bullock, Salt Lake City, Utah, for plaintiff-appellant.

Louis A. Bradbury, Atty., Tax Div., Dept. of Justice (Scott P. Crampton, Asst. Atty. Gen., Ernest J. Brown and Leonard J. Henzke, Jr., Attys., Tax Div., Dept. of Justice, and C. Nelson Day, U.S. Atty. of counsel, on the brief), for defendant-appellee.

Before BREITENSTEIN, BARRETT and DOYLE, Circuit Judges.

BREITENSTEIN, Circuit Judge.

This suit for refund of excise taxes was tried on agreed facts and the district court gave summary judgment for the United States. The taxpayer has appealed.

Section 4241 of the Internal Revenue Code of 1954 imposed a 20% tax on any amount paid as dues or membership fees to a social, athletic, or sporting club. Section 4291 provides that a person receiving payment for facilities or services

490 F.2d 1279

on which a tax is imposed on the payor thereof shall collect the amount of tax due from the person making that payment. Section 4241 was repealed by § 301 of the Excise Tax Reduction Act of 1965, 79 Stat. 136, 145, and § 4291 was modified to recognize that repeal. 79 Stat. at 148. Our concern is with taxes claimed to be owing by a country club on dues and fees paid between July, 1958 and July, 1962

The responsibilities of a club such as taxpayer are governed by the then applicable regulations and statutes. Section 42.4291-1 of the Treasury Regulations on Services and Facilities Taxes (1954 Code) makes applicable to the 1954 Code §§ 101.37 through 101.39 of Treasury Regulations 43 (1941 ed.), 26 C.F.R. §§ 101.37-101.39 (Cum.Supp.). Section 101.38 requires every club subject to the excise tax to keep records showing the amount of dues-tax paid by each member. Section 101.39 requires a club to file monthly reports showing the amount collected. Section 101.37 says that the taxes collected must be remitted not later than two months after payment thereof, and that taxes collected become a special trust fund for the United States under what is now § 7501 of the Internal Revenue Code of 1954.

Alpine Country Club, taxpayer, was incorporated in July, 1958, to operate a golf and country club at Alpine, Utah. Between then and July, 1962, it collected $331,078.60 as dues and fees from its members, did not assess the tax...