McGowan v. United States

• Citation: 222 F. Supp. 329
• Decision Date: 22 June 1962
• Docket Number: Civ. No. 10356-M.
• Parties: Thomas J. McGOWAN, Trading and Doing Business as Aboena Sightseeing Boats, Plaintiff, v. UNITED STATES of America, Defendant.
• Court: United States District Courts. 11th Circuit. United States District Courts. 11th Circuit. Southern District of Florida

222 F. Supp. 329

Thomas J. McGOWAN, Trading and Doing Business as Aboena Sightseeing Boats, Plaintiff, v. UNITED STATES of America, Defendant.

Civ. No. 10356-M.

United States District Court S. D. Florida, Miami Division.

June 22, 1962.

David W. Palmer, Panama City, Fla., for plaintiff.

Louis F. Oberdorfer, Asst. Atty. Gen., and Edward S. Smith, Myron C. Baum, and John B. Clark, Jr., Department of Justice, for the Government.

DYER, Chief Judge.

This is a suit for tax refund for certain payments of transportation tax brought by the proprietor of a sightseeing tour. Involved are two payments in 1957 and four in 1958, amounting, with certain penalties and interest, to a total claim of $1,465.80. This Court has jurisdiction of the parties and subject matter under 28 U.S.C. § 1346(a) (1). It is claimed by the Government that the tax was due under 26 U.S.C. § 4261. Plaintiff denies that the act applies at all to his business, but especially objects to its application to those items, other than transportation, which are involved in the all expense tour. Plaintiff's suit was dismissed upon a former trial for lack of standing to sue under 26 U.S.C. § 6415; that judgment was reversed upon appeal. (McGowan v. United States, 5 Cir., 296 F.2d 252, 1961)

The cause came on for final hearing on submission by the parties upon the file and record made in the former trial. Essentially the points left open by the opinion of the Appellate Court are: the Plaintiff's standing to sue, dependent upon his having borne the economic burden; and the further questions of the coverage of 26 U.S.C. § 4261 and the effect of various Internal Revenue regulations thereunder.

In so far as is necessary to its determination the Court finds the following facts from the evidence before it: Plaintiff and his wife purchased the sightseeing business from one McConnell in the Spring of 1957. The tour by boat through the canals of Fort Lauderdale stops at a Seminole Indian village to watch alligator wrestling. When Plaintiff purchased the business from McConnell in 1957 he continued to charge $2.00 for adults and $1.00 for children, as had his predecessor, without any regard specifically to the Federal Transportation Tax of which no notation appeared on the ticket. His accountant, in figuring his tax return, simply took 1/11 of the total receipts as the tax payable. Plaintiff employed a lecturer to accompany the trips.

If it is determined that Plaintiff has not borne the economic burden — it is admitted that he did not make the refund or obtain consents required by 26 U.S.C. § 6415 — that ends the suit, since Plaintiff would then have no standing to sue and the Court would not reach the merits. (United States v. Knowles, 5 Cir., 235 F.2d 177, 1956; Davis v. United States, 5 Cir., 235 F.2d 174, 1956; United States v. Walker, 5 Cir., 234 F.2d 910, 1956; United States v. Walls, 5 Cir., 231 F.2d 440, 1956). The burden of proof is upon Plaintiff. Neither Plaintiff nor Defendant has seen fit to introduce any evidence other than what was before the former trial court and the Court of Appeals, but each is content to rely upon that record. This Court is faced with a cold record which shows that three of Plaintiff's witnesses, McConnell, Betty McGowan and Thomas J. McGowan, the last two of whom are interested parties, testified on oral examination that the tax was not collected from the customers but was borne by the proprietor of the business. Against this there is a prior contradictory statement in writing by McConnell (Defendant's Ex. A) given to Internal Revenue agent Gunther in January, 1961, which McConnell admitted upon cross-examination he had signed. On Defendant's case agent Gunther testified about oral statements made by Plaintiff and his wife which would tend...