Long v. Kelly, 224-E.
| Citation | 100 F. Supp. 235 |
| Decision Date | 13 August 1951 |
| Docket Number | No. 224-E.,224-E. |
| Parties | LONG v. KELLY, Deputy Collector of Internal Revenue et al. |
| Court | U.S. District Court — Middle District of Alabama |
Joseph W. Bunkley, of Opelika, Ala., for plaintiff.
E. Burns Parker, U. S. Atty., Ben Hardeman, Asst. U. S. Atty., Montgomery, Ala., and Frederic G. Rita, Special Asst., for defendant.
1. On or about December 3, 1949, a still was raided in Russell County, Alabama, resulting in the arrest of four colored men. The men were questioned in the Russell County jail and affidavits obtained implicating the plaintiff and Harrison Hollis as being connected with the still. The two men were indicted and tried before this Court sitting in Opelika, Alabama, on November 9, 1949. The four colored men were the Government's witnesses and upon the trial repudiated the affidavits previously given. The Government then dismissed its case against the plaintiff.
2. The Collector of Internal Revenue, Birmingham, Alabama, assessed the plaintiff $2,745 plus $137.25 penalty on the February, 1950, Distilled Spirits List, page B-1, line 7, and by letter informed the plaintiff that the Civil and Criminal phases of the case were "entirely separate and distinct."
3. Testimony of the plaintiff as a witness showed plainly that he never had any connection with the still found in Russell County or had anything to do with the whiskey produced therefrom. He testified that he was unable to pay the warrant of distraint and that if every thing he possessed were sold he did not believe that the warrant could be paid, and that he was unable to provide a home for his family other than the home in which he then lived.
4. C. W. Petts, produced as a witness by the defendants, testified that he took the affidavits of the colored men which implicated the plaintiff. The affidavits were introduced as being the evidence upon which the Collector based the assessment.
5. The plaintiff called the colored men in rebuttal and upon the witness stand their affidavits implicating the plaintiff were again repudiated.
The evidence in the case connecting the plaintiff with any whiskey as a basis for the tax was fully and completely repudiated in the criminal trial and also at the present trial. There being no reasonable basis for the assessment of the tax, the assessment was arbitrarily and capriciously imposed. Counsel for defendants insisted that the district court lacked jurisdiction in these cases and in argument on motion to dismiss cited Burke v. Mingori, 10 Cir. 128 F.2d 986. This case held that there were no extraordinary circumstances and relief was denied. Driscoll v. Jones, D.C. 19 F.Supp. 792, Leonardi v. Goldburg, D.C., 76 F.Supp. 747, and Strang v. Maloney D.C.N.J. Jan. 15, 1943, 32 AFTR 1737, are almost identical to the present case in that the plaintiffs had been tried and acquitted but later were assessed a tax by the Collector of Internal Revenue. The plaintiffs were unable to pay and sue for recovery. The Courts held the inability to pay sufficient as extraordinary circumstances. The facts are the same in the instant case. The Court in Strang v. Maloney, supra, said in regard to defendants denial of jurisdiction of the Court: I disagree with the contention made for ...
To continue reading
Request your trial
-
Homan Mfg. Co. v. Long
...v. Andrews, D.C.Okl.1954, 121 F.Supp. 584 reversed on other grounds, Sanders v. C. I. R., 10 Cir., 1955, 225 F.2d 29; Long v. Kelly, D.C.Ala.1951, 100 F.Supp. 235 exceptional circumstances found; Acklin v. Peoples Sav. Ass'n, D.C.Ohio 1923, 293 F. 392, exempt association, extraordinary circ......
-
Peele v. Glotzbach
...v. United States, 291 U.S. 293, 54 S.Ct. 396, 78 L.Ed. 804. Plaintiff relies upon Driscoll v. Jones, D.C., 19 F.Supp. 792, and Long v. Kelly, D.C., 100 F.Supp. 235. In these cases injunctions were granted but plaintiffs had been acquitted of the criminal charges of illegally manufacturing w......
-
Hudson v. Crenshaw
...76 L.Ed. 935; U. S. v. United States Industrial Alcohol Co., 4 Cir., 103 F.2d 97. There is some authority to the contrary. Long v. Kelly, D.C., 100 F.Supp. 235, holds that the tax was a penalty in the guise of a tax but, if not a penalty, exceptional circumstances existed which justified re......
-
Hudson v. Crenshaw, 7015.
...for injunction. Appellant urges that this court follow the cases of Driscoll v. Jones, D.C.Okl., 19 F.Supp. 792, and Long v. Kelly, D.C. Ala., 100 F.Supp. 235. In each case an injunction was obtained restraining the collection of a tax on distilled spirits. The complainants, however, had be......