Heyman v. United States
| Decision Date | 15 July 1974 |
| Docket Number | No. 73-2879,73-2912.,73-2879 |
| Citation | 497 F.2d 121 |
| Parties | Charles HEYMAN, Plaintiff-Appellant, v. UNITED STATES of America, Defendant-Appellee. George W. GOLDEN, Jr., Plaintiff-Appellant, v. UNITED STATES of America, Defendant-Appellee. |
| Court | U.S. Court of Appeals — Fifth Circuit |
Sidney A. Soltz, Miami, Fla., for plaintiffs-appellants.
Robert W. Rust, U. S. Atty., Mervyn L. Ames, Clemens Hagglund, Asst. U. S. Attys., Miami, Fla., Jay R. Weill, Atty., Scott P. Crampton, Asst. Atty. Gen., Meyer Rothwacks, Crombie J. D. Garrett, David English Carmack, Gordon S. Gilman, Attys., Tax Div., Dept. of Justice, Washington, D. C., for defendant-appellee.
Before WISDOM, AINSWORTH and GODBOLD, Circuit Judges.
These cases have a common issue. Each plaintiff paid wagering excise taxes and sued for a refund. The government counterclaimed for a substantial unpaid balance on the assessment against each plaintiff. In each case the government moved for and was granted a directed verdict on the issue of the correctness of the assessment.
Each plaintiff's records, such as bet slips, summary sheets and records indicating balances due, were seized by state officials investigating illegal lottery operations. State officers notified the Internal Revenue Service and made the records available to an IRS agent, who prepared summaries and used them for the purpose of calculating the respective amounts of taxes claimed by the government to be due. The assessments were based thereon. Subsequently a state court ordered that plaintiffs' records be returned to them, but in the interim they had been destroyed by state officers. There is no contention that the federal government was in any manner involved or at fault in the destruction.
The plaintiffs recognize the burden of proof that is upon them with respect to their refund suits and to the counterclaims to establish that the respective assessments are wrong and to come forward with convincing evidence from which proper determinations of their respective tax obligations can be made. But each urges that he should be relieved from his burden because of the destruction of his records rendering it impossible, each says, to establish that the assessment against him is incorrect. If that argument could ever have validity, it has none here. In each instance the seized records covered only a brief time span, and from that period the agent projected the average daily business carried on for the entire period in question,...
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