Schuster's Wholesale Produce Co. v. United States
| Decision Date | 03 May 1943 |
| Docket Number | No. 721.,721. |
| Parties | SCHUSTER'S WHOLESALE PRODUCE CO., Inc., et al. v. UNITED STATES. |
| Court | U.S. District Court — Western District of Louisiana |
A. B. Freyer, Sr., A. B. Freyer, Jr., and Wise, Randolph, Rendall & Freyer, all of Shreveport, La., for plaintiff.
M. E. Lafargue and J. A. Patin, both of Shreveport, La., for defendant.
Plaintiff seeks a refund of an excise tax paid under protest and claimed by the Government to be due under Section 1700 of the Internal Revenue Code, Section 542(a) of the Revenue Act of 1941, 26 U.S.C.A. Int.Rev.Acts, reading as follows:
"There shall be levied, assessed, collected, and paid —
* * * * *
The facts are not disputed, and stated briefly, are these: The place, operated by plaintiff, known as the Pelican, is situated in Bossier Parish, across Red River, about one mile from the city of Shreveport. The bar, with stools, booths, etc., occupies the front end of the building through which all patrons enter, but immediately behind is a larger room with a dance floor in the center surrounded by chairs and tables at which the customers are served. This latter room is separated from the bar by swinging doors, and has a nickelodeon, which is played by the insertion of coins, mainly by patrons, who are at liberty to dance or not as they see fit. The same prices are charged for drinks in both rooms. There is no admission charge, as such, but on Saturday nights, a minimum of 50¢ per person is required to be spent by those served in the back room. It was explained at the trial that this is necessary to prevent, on the busiest night of the week, use of the chairs and tables by persons who would buy only a soft drink or other small items amounting to a few cents, to the exclusion of more profitable customers. A substantial part of the trade of the Pelican is the sale of "package goods", and the prices are the same, whether consumed on the premises or not.
The amount paid by plaintiff, for which the suit was brought, was $274.61, for the month of April, 1942, the first month for which the tax was levied, but the court declined to permit proof of recovery for additional months because, as to this, no demand for refund and refusal had been made. However, a determination of the validity of the tax as to this first month will doubtless control the course of the Government with respect to others.
The question is as to whether the plaintiff furnishes to its patrons "a public performance" in which "any payment, or part thereof, for admission, refreshment, service, or merchandise, entitles the patron to be present during any portion of such performance." Of course, Congress could, by express provision define "a public performance for profit" to include dancing by the customers and, in fact, by an amendment to Section 622 of the Revenue Act of 1942, 26 U.S.C.A. Int.Rev.Code, § 1700 (e) (1), it has declared that a "performance shall be regarded as being furnished for profit for purposes of this section even though the charge made for admission, refreshment, service, or merchandise is not increased by reason of the furnishing of such performance" and the words "* * * `roof garden, cabaret, or other similar place' * * *" is defined to "include any room in any hotel, restaurant, hall, * * * or any other entertainment, except instrumental or mechanical music alone, are afforded to patrons in connection with the serving or selling of food,...
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Jones v. Fox
...rather than from the charging of an admission fee was taxable as a cabaret or other similar place (Schuster's Wholesale Produce Co. v. United States, D.C.W.D.La.1943, 49 F. Supp. 909; Rogers v. Stuart, D.Ariz. 1945, 80 F.Supp. 436; Baldwinson v. United States, D.C.W.D.Wash.1948, 80 F.Supp. ......
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Geer v. Birmingham
...concerning the validity of the 1941 Treasury Regulations 43 would seem to be justified by the case of Schuster's Wholesale Produce Co. v. United States, D.C.W.D.La.1943, 49 F.Supp. 909. That case involved a liquor store which maintained in the back of the building a dance floor with a nicke......
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Lethert v. Culbertson's Cafe, Inc.
...1941, 36 F.Supp. 392, affirmed, 6 Cir., 130 F.2d 187, 142 A.L.R. 563, with one judge dissenting; Schuster's Wholesale Produce Co. v. United States, W.D.La., 1943, 49 F.Supp. 909; Rogers v. Stuart, D.Ariz., 1945, 80 F. Supp. 436; Sir Francis Drake Hotel Co. v. United States, N.D.Cal., 1947, ......
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Baldwinson v. United States
...v. Deshler Hotel Co., 6 Cir., 1942, 130 F.2d 187, 142 A.L.R. 563, affirming D.C., 36 F. Supp. 392; Schuster's Wholesale Produce Co., Inc., v. United States, D.C., La.1943, 49 F.Supp. 909. (A later case from this Circuit, holding to the same effect, and relying upon the Busey and the Schuste......