Seib v. United States, 13048.

• Citation: 150 F.2d 673
• Decision Date: 27 July 1945
• Docket Number: No. 13048.,13048.
• Parties: SEIB v. UNITED STATES.
• Court: United States Courts of Appeals. United States Court of Appeals (8th Circuit)

150 F.2d 673 (1945)

SEIB v. UNITED STATES.

No. 13048.

Circuit Court of Appeals, Eighth Circuit.

July 27, 1945.

J. Grant Frye, of Cape Girardeau, Mo., for appellant.

Harry C. Blanton, U. S. Atty., of Sikeston, Mo. (Arthur A. Hapke, Asst. U. S. Atty., of St. Louis, Mo., on the brief), for appellee.

Before GARDNER, JOHNSEN, and RIDDICK, Circuit Judges.

RIDDICK, Circuit Judge.

This is an appeal, by an intervener, from a judgment in favor of the United States in forfeiture proceedings instituted by the United States against approximately 1546 wine gallons of spirituous liquors.

The libel against the liquors was presented in two counts. The first count charged that on or about January 11, 1944, certain agents of the Alcohol Tax Unit of the Bureau of Internal Revenue of the United States Treasury Department seized and took into their possession certain described spirituous liquors, which at the time and place (Charleston, Missouri) of seizure were owned and possessed by the appellant; that at the time of the seizure, as well as for a long period of time prior thereto, the said appellant was unlawfully carrying on the business of a wholesale liquor dealer, and that, as such wholesale liquor dealer, he did sell and offer for sale distilled spirits in quantities of five wine gallons or more to the same person at the same time without having paid the special tax for a wholesale liquor dealer, as required by law; and that, by reason of the facts alleged, the described spirituous liquors became forfeited to the United States under the provisions of section 3253 of the Internal Revenue Code, 26 U.S.C.A. Int.Rev.Code, § 3253. Count Two of the libel charged that the spirituous liquors described in the first count were at the time of the seizure held and possessed by the appellant with the intention to use the liquors in violating the Internal Revenue Laws of the United States contrary to section 3116 of the Internal Revenue Code, 26 U.S.C.A. Int.Rev.Code, § 3116, in the following particulars: (1) That at the time of seizure and for a long time prior thereto, the appellant, at the place of seizure, carried on the business of a wholesale liquor dealer in distilled spirits without having paid the special tax required of such wholesale dealer by the Revenue Laws of the United States; (2) that the appellant failed to keep daily at his place of business a record of distilled spirits received and disposed of by him, and failed to render, under oath, to the District Supervisor of the Alcohol Tax Unit in Kansas City, Missouri, correct transcripts and summaries of such records, as he was required to do under the Internal Revenue Laws of the United States and regulations duly promulgated under the Internal Revenue Laws; and (3) that the appellant further violated the Internal Revenue Laws of the United States and the regulations prescribed thereunder in that at the time of the seizure he was engaged in the business of purchasing for resale at wholesale distilled spirits without having first secured a basic permit for such transactions as required by section 203 of Title 27 of the United States Code Annotated.

For reversal of the judgment of forfeiture the appellant contends that nothing in section 3253 of the Internal Revenue Code, on which the first count of the libel was based, authorizes a forfeiture of liquor to the United States for engaging in business as a wholesale dealer in liquors without having paid the special tax required of wholesalers by section 3250 of the Internal Revenue Code, 26 U.S.C.A. Int.Rev.Code, § 3250. With reference to Count Two appellant's position is that the evidence is insufficient to sustain the judgment.

By section 3254 of the Internal Revenue Code, 26 U.S.C.A. Int.Rev.Code, § 3254, a wholesale dealer in liquors includes:

"* * * every person who sells, or offers for sale, foreign or domestic distilled spirits, wines, or malt liquors in quantities of five wine-gallons or more to the same person at the same time * * *."

The evidence on behalf of the Government established without contradiction several sales of whiskey made by the appellant, at the place of seizure, of more than five wine-gallons to the same person at the same time. Section 3250 of the Internal Revenue Code requires a wholesale dealer to pay a special tax. The appellant did not pay this special tax. Section 3253 of the...