Fortis, Inc. v. U.S., Docket No. 05-2518-CV.

CourtUnited States Courts of Appeals. United States Court of Appeals (2nd Circuit)
Writing for the CourtPer Curiam
Citation447 F.3d 190
PartiesFORTIS, INC., Plaintiff-Appellee, v. UNITED STATES of America, Defendant-Appellant.
Decision Date27 April 2006
Docket NumberDocket No. 05-2518-CV.
447 F.3d 190
FORTIS, INC., Plaintiff-Appellee,
v.
UNITED STATES of America, Defendant-Appellant.
Docket No. 05-2518-CV.
United States Court of Appeals, Second Circuit.
Argued: March 22, 2006.
Decided: April 27, 2006.

Page 191

Henry D. Levine, Levine, Blaszak, Block & Boothby, LLP, Washington DC (Stephen J. Rosen, Levine, Blaszak, Block & Boothby, LLP, Washington DC, on the brief; Bradley S. Waterman, Washington DC, of counsel; Richard C. Yeskoo, Yeskoo, Hogan & Tamlyn LLP, New York, NY, of counsel), for Plaintiff-Appellee.

Benjamin H. Torrance, Assistant United States Attorney (David S. Jones, Assistant United States Attorney, of counsel; Michael J. Garcia, United States Attorney for the Southern District of New York, on the brief), New York, NY, for Defendant-Appellant.

Before: STRAUB and SACK, Circuit Judges, and TRAGER, District Judge.*

PER CURIAM.


The United States of America appeals from a judgment of the United States District Court for the Southern District of New York (John G. Koeltl, Judge), granting summary judgment to plaintiff Fortis, Inc. ("Fortis") on Fortis's claim for a refund of excise taxes. At issue is whether the federal excise tax statute, 26 U.S.C. § 4251, et seq., applies to the telephone services used by Fortis during that time, and in particular, whether the provision of that statute that defines taxable toll telephone service as a "telephonic quality communication for which (a) there is a toll charge which varies in amount with the distance and elapsed transmission time of each individual communication and (b) the charge is paid within the United States," 26 U.S.C. § 4252(b), applies to services for which the toll charge varies in amount only with the transmission time of each call, and not with the distance the call travels. In two thorough and well-reasoned opinions, Judge Koeltl granted summary judgment in favor of Fortis on the liability of the Government for Fortis's claim to a refund, and denied the Government's cross-motion for summary judgment. See Fortis v. United States, 420 F.Supp.2d 166 (S.D.N.Y.2004); 420 F.Supp.2d 185 (S.D.N.Y.2005).

Subsequent to the District Court's decisions, the Sixth, Eleventh and D.C. Circuits have considered this issue and have, for substantially the same reasons as those stated by the District Court, reached the conclusion that telephone services such as Fortis's are not taxable under 26 U.S.C. §§ 4251 and 4252. See Nat'l R.R. Passenger Corp. v. United States, 431 F.3d...

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19 practice notes
  • Cohen v. United States, No. 08-5088
    • United States
    • United States Courts of Appeals. United States Court of Appeals (District of Columbia)
    • July 1, 2011
    ...without reference to distance. Reese Bros., Inc. v. United States, 447 F.3d 229, 231 (3d Cir. 2006); Fortis, Inc. v. United States, 447 F.3d 190, 191 (2d Cir. 2006); Nat'l R.R. Passenger, 431 F.3d at 374; OfficeMax, Inc. v. United States, 428 F.3d 583, 585 (6th Cir. 2005); Am. Bankers Ins. ......
  • Long-Distance Tel. Serv. Fed. Excise Tax Refund Litigation-Mdl 1798 v. United States, Nos. MDL 1798
    • United States
    • United States Courts of Appeals. United States Court of Appeals (District of Columbia)
    • July 2, 2014
    ...of the times, but it seems more an artifact of an administrative state gone deeply awry.--------Notes: 1.Fortis, Inc. v. United States, 447 F.3d 190 (2d Cir.2006) (per curiam); Reese Bros., Inc. v. United States, 447 F.3d 229 (3d Cir.2006); Am. Bankers Ins. Grp. v. United States, 408 F.3d 1......
  • In re Long-Distance Tele. Serv. Fed. Excise Tax, MDL Docket No. 1798.
    • United States
    • United States District Courts. United States District Court (Columbia)
    • March 25, 2008
    ...reliance on § 4251 to be unlawful. Reese Bros., Inc. v. United States, 447 F.3d 229, 234 (3d Cir.2006); Fortis, Inc. v. United States, 447 F.3d 190, 190 (2d Cir.2006); Nat'l R.R. Passenger Corp., 431 F.3d at 379; OfficeMax, Inc. v. United States, 428 F.3d 583, 600 (6th Cir.2005); Am. Banker......
  • In re Long-Distance Telephone Service, MDL No. 1798.
    • United States
    • United States District Courts. United States District Court (Columbia)
    • August 10, 2007
    ...reliance on § 4251 to be unlawful. Reese Bros., Inc. v. United States, 447 F.3d 229, 234 (3d Cir.2006); Fortis, Inc. v. United States, 447 F.3d 190, 190 (2d Cir. 2006); Nat'l R.R. Passenger Corp. v. United States, 431 F.3d 374, 379 Page 38 OfficeMax, Inc. v. United States, 428 F.3d 583, 600......
  • Request a trial to view additional results
19 cases
  • Cohen v. United States, No. 08-5088
    • United States
    • United States Courts of Appeals. United States Court of Appeals (District of Columbia)
    • July 1, 2011
    ...without reference to distance. Reese Bros., Inc. v. United States, 447 F.3d 229, 231 (3d Cir. 2006); Fortis, Inc. v. United States, 447 F.3d 190, 191 (2d Cir. 2006); Nat'l R.R. Passenger, 431 F.3d at 374; OfficeMax, Inc. v. United States, 428 F.3d 583, 585 (6th Cir. 2005); Am. Bankers Ins. ......
  • Long-Distance Tel. Serv. Fed. Excise Tax Refund Litigation-Mdl 1798 v. United States, Nos. MDL 1798
    • United States
    • United States Courts of Appeals. United States Court of Appeals (District of Columbia)
    • July 2, 2014
    ...of the times, but it seems more an artifact of an administrative state gone deeply awry.--------Notes: 1.Fortis, Inc. v. United States, 447 F.3d 190 (2d Cir.2006) (per curiam); Reese Bros., Inc. v. United States, 447 F.3d 229 (3d Cir.2006); Am. Bankers Ins. Grp. v. United States, 408 F.3d 1......
  • In re Long-Distance Tele. Serv. Fed. Excise Tax, MDL Docket No. 1798.
    • United States
    • United States District Courts. United States District Court (Columbia)
    • March 25, 2008
    ...reliance on § 4251 to be unlawful. Reese Bros., Inc. v. United States, 447 F.3d 229, 234 (3d Cir.2006); Fortis, Inc. v. United States, 447 F.3d 190, 190 (2d Cir.2006); Nat'l R.R. Passenger Corp., 431 F.3d at 379; OfficeMax, Inc. v. United States, 428 F.3d 583, 600 (6th Cir.2005); Am. Banker......
  • In re Long-Distance Telephone Service, MDL No. 1798.
    • United States
    • United States District Courts. United States District Court (Columbia)
    • August 10, 2007
    ...reliance on § 4251 to be unlawful. Reese Bros., Inc. v. United States, 447 F.3d 229, 234 (3d Cir.2006); Fortis, Inc. v. United States, 447 F.3d 190, 190 (2d Cir. 2006); Nat'l R.R. Passenger Corp. v. United States, 431 F.3d 374, 379 Page 38 OfficeMax, Inc. v. United States, 428 F.3d 583, 600......
  • Request a trial to view additional results

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