Schwarz v. United States, Civ. A. No. 5049.
| Decision Date | 02 March 1956 |
| Docket Number | Civ. A. No. 5049. |
| Citation | 138 F. Supp. 841 |
| Court | U.S. District Court — Eastern District of Wisconsin |
| Parties | Marcel C. SCHWARZ, Plaintiff, v. UNITED STATES of America, Defendant. |
Leo J. Federer, Milwaukee, Wis., for plaintiff.
Edward G. Minor, U. S. Atty., by Arnold W. F. Langner, Jr., Asst. U. S. Atty., Milwaukee, Wis., for defendant.
This action is for a refund of income taxes allegedly collected erroneously and illegally when the Commissioner disallowed deductions claimed for the year 1945 in the amount of $16,108.44 alleged by the plaintiff to represent "the excess over O.P.A. prices paid by the plaintiff for merchandise sold and constituting a part of plaintiff's cost of merchandise sold." The answer of the government denies the plaintiff's material allegations that the adjustment in determining plaintiff's tax liability for the year 1945 which consisted of increasing taxable income in the amount of $16,108.44 was a disallowance of overceiling price payments constituting a part of plaintiff's cost of merchandise sold and puts that fact in issue.
Whether the plaintiff in fact made such overceiling price payments as a part of cost of goods sold which were taken as deductions in the plaintiff's 1945 return is the only issue in this case.
At the time the agent's report was made it was believed that the law did not allow a deduction for over O.P.A. price cost payments. Therefore, if the payment were made, it was disallowable as such, and if it were not made, it was disallowable as a fiction. The stipulation of facts entered into by the parties on July 16, 1954, and filed September 7, 1954, and the report of the internal revenue agent in April, 1947, in Exhibit "B" of the stipulation do not conclusively establish the fact in issue. This inconclusiveness of the stipulation upon the single factual issue in this case was determined by the order entered by Judge Robert E. Tehan on November 29, 1954, denying plaintiff's motion for summary judgment:
"* * * the Court * * * being of the opinion that there is a genuine issue of material fact, it is ordered * * * etc."
The plaintiff urges the admissibility of an affidavit of one G. J. Jonasson marked "Plaintiff's Exhibit No. 1" for identification to the effect that plaintiff made the overceiling price payments as claimed either to Jonasson or at his direction. The grounds plaintiff urges for this affidavit's admission is that it is "an important exception to the hearsay rule" in that it is a declaration against the interest of the declarant who is neither a party nor in privity with a party to this action, but is relevant, and the declarant is "not available as a witness." Relying on Dillenberg v. Carroll, 1951, 259 Wis. 417, 49 N.W.2d 444.
It is this Court's opinion that there is no part of this record establishing that the declaration is in any way against the interest of the declarant. It cannot be said he has...
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WAUKESHA MOTOR COMPANY v. United States
...v. United States, 340 F.2d 624, 629-630, 169 Ct. Cl. 276 (1965). It has also been cited and approved by this court. Schwarz v. United States, 138 F.Supp. 841, 843 (D.C.1956). This presumption in favor of the Commissioner's assessment of tax liability is even stronger where the taxpayer is c......