Porter v. United States

CourtUnited States Courts of Appeals. United States Court of Appeals (5th Circuit)
Citation303 F.2d 67
Docket NumberNo. 19371.,19371.
PartiesRandon PORTER, Jr., Appellant, v. UNITED STATES of America, Appellee.
Decision Date17 May 1962

303 F.2d 67 (1962)

Randon PORTER, Jr., Appellant,
UNITED STATES of America, Appellee.

No. 19371.

United States Court of Appeals Fifth Circuit.

May 17, 1962.

Dwight H. Austin, Houston, Tex., Liddell, Austin, Dawson & Sapp, John H. Marshall, Houston, Tex., of counsel, for appellant.

Louis F. Oberdorfer, Asst. Atty. Gen., Lee A. Jackson, Atty., Dept. of Justice, Washington, D. C., Woodrow B. Seals, U. S. Atty., Houston, Tex., Robert N. Anderson, Arthur E. Strout, and Melva M. Graney, Attys., Dept. of Justice, Washington, D. C., William B. Butler, Asst. U. S. Atty., for the United States.

Before TUTTLE, Chief Judge, and HUTCHESON and WISDOM, Circuit Judges.

JOSEPH C. HUTCHESON, Jr., Circuit Judge.

This is an appeal from a judgment in an excise tax case heard on stipulated and undisputed facts. The district court filed findings of fact and law in the form of a written opinion.1 The excise taxes paid by the plaintiff for which refund is sought in this case were assessed and paid during the first half of the year 1958 in respect to certain boat slip rental charges made by the Houston Yacht Club

303 F.2d 68
of which he was a member. They were assessed as dues to the Club upon the basis of Sections 4241 and 4242 of the Internal Revenue Code of 1954, 26 U.S. C.A. §§ 4241, 4242.2

As shown in the opinion, the taxpayer was a regular dues paying member of the Houston Yacht Club, a social or sporting club within the meaning of Sec. 4241 I.R.C. of 1954. Club facilities include a club house, swimming pool, dining room, sleeping rooms, and a harbor with adjacent wharves and boat slips. These boat slips are of various sizes, and some are open while others are covered. All club members may use the available facilities, but any member who uses a slip for mooring his boat is charged for such use over and above regularly monthly dues. Rates for slips vary because of differences in size, covering, and location. Under arrangements between club members the charge made for use of slips is on a day-to-day basis at a daily rate and members are billed at the end of each month at a daily rate for the number of days the slip is used in that month.

The taxpayer began to use one of the club's slips on February 14, 1958. The charge was $1.22 per day. Except for occasional outings, none overnight, the taxpayer's boat was moored continuously at the slip from February 14, 1958, to June 30, 1958, a period of 106 consecutive days. The amount for the final 30 days, charged on June 30, 1958, was not paid during the quarters herein litigated

On August 7, 1959, excise taxes in the amount of $25.86 were assessed on the above...

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7 cases
  • Freeport Country Club v. United States, 17805.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (7th Circuit)
    • July 9, 1970
    ...315 U.S. 42, 62 S.Ct. 430, 86 L. Ed. 656 (1941); Cohen v. United States, 381 F.2d 383, 180 Ct.Cl. 647 (1967); Porter v. United States, 303 F.2d 67 (5th Cir., 1962); Hawaii Yacht Club v. United States, 301 F.Supp. 1150 (D. Hawaii, 1969); Fontainebleau Hotel Corp. v. United States, 284 F.Supp......
  • Ox Ridge Hunt Club, Inc. v. Tax Com'r
    • United States
    • Supreme Court of Connecticut
    • May 2, 1978
    ...occasion of actual use, they were found to fall within the exception of White v. Winchester Club, supra. Thus, in Porter v. United States, 303 F.2d 67, 68-69 (5th Cir. 1962), a charge for the use of boat slips, billed monthly to members at a daily rate based on the number of days the slip w......
  • Hoke v. United States, 2539.
    • United States
    • United States District Courts. 4th Circuit. Southern District of West Virginia
    • September 12, 1967
    ...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 po......
  • Cohen v. United States, 340-65.
    • United States
    • Court of Federal Claims
    • July 20, 1967
    ...in a given event or activity — they have been held not to be dues subject to 381 F.2d 387 the tax. E. g., Porter v. United States, 303 F.2d 67 (5th Cir. The main determinant, common to the cases referred to previously, which is used as a yardstick for measuring tax liability in like circums......
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