Hoke v. United States, 2539.

• Court: United States District Courts. 4th Circuit. Southern District of West Virginia
• Writing for the Court: J. Campbell Palmer III, Charleston, W. Va., for plaintiffs
• Citation: 273 F. Supp. 756
• Parties: M. K. HOKE, J. W. Moody, J. Campbell Palmer III, Robert L. Elkins, John D. Gift, H. K. Miller, Paul T. Bricker, Paul T. Arbuckle, J. E. Hulshizer, and W. Elliott Abbitt v. UNITED STATES of America.
• Docket Number: No. 2539.,2539.
• Decision Date: 12 September 1967

273 F. Supp. 756

M. K. HOKE, J. W. Moody, J. Campbell Palmer III, Robert L. Elkins, John D. Gift, H. K. Miller, Paul T. Bricker, Paul T. Arbuckle, J. E. Hulshizer, and W. Elliott Abbitt
v.
UNITED STATES of America.

No. 2539.

United States District Court S. D. West Virginia, Charleston Division.

September 12, 1967.

J. Campbell Palmer III, Charleston, W. Va., for plaintiffs.

Mitchell Rogovin, Washington, D. C., Milton J. Ferguson, Charleston, W. Va., for defendant.

FIELD, Chief Judge.

This case was instituted by the taxpayer, J. Campbell Palmer III, together with the other plaintiffs, to recover certain excise taxes assessed and paid on dues and fees incident to their membership in Sleepy Hollow Golf Club.

273 F. Supp. 757

On cross motions for partial summary judgment, the question was presented whether the amount paid to the golf club as annual rental for a locker was properly subject to the excise tax imposed upon dues or membership fees under Section 4241 as defined in Section 4242 of the Internal Revenue Code of 1954. By ruling dated February 15, 1963, D.C., 215 F.Supp. 942, I held that such locker rentals were subject to the excise tax imposed by Section 4241, and indicated that the Government's motion should be granted and the plaintiff's motion denied.

Plaintiff, Palmer, filed a petition for rehearing and the question was further briefed by counsel. In the meantime other facets of the case came on for consideration, and the disposition of the petition for rehearing has remained in abeyance. In my original ruling I relied primarily on the case of Knoll Golf Club v. United States, 179 F.Supp. 377 (D.N.J. 1959). This case has been followed in two recent cases. Boots and Saddles, Inc. v. United States, 269 F.Supp. 274 (E.D. Mich.1967), and Gearhart v. United States, 269 F.Supp. 309 (E.D.Va.1967). In the latter case Judge Hoffman distinguished the case of Gould v. United States, 187 F.Supp. 337 (D.Col.1960), aff'd per curiam, 296 F.2d 740 (10th Cir. 1961), relied upon by plaintiff in his brief on rehearing. In my opinion Gould as well as Porter v. United States, 303 F. 2d 67 (5th Cir. 1962), cited by plaintiff, is inapposite to the facts presented here, and under the circumstances I see no reason to change my position from that stated in my letter of February 15, 1963.

Sleepy Hollow Golf Corporation Stock

The second phase of this case involves the question of the validity of the assessment of the federal excise tax on stock purchased by...