Smith v. United States

• Decision Date: 03 April 1957
• Docket Number: No. 16457.,16457.
• Citation: 242 F.2d 486
• Parties: Jack SMITH, Appellant, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

242 F.2d 486 (1957)

Jack SMITH, Appellant, v. UNITED STATES of America, Appellee.

No. 16457.

United States Court of Appeals Fifth Circuit.

April 3, 1957.

David W. Palmer, Destin, Fla., W. G. Cornett, Earl R. Duncan, William B. Leath, Panama City, Fla., for appellant.

George F. Lynch, Lee A. Jackson, Attys., Dept. of Justice, Washington, D. C., Charles K. Rice, Asst. Atty. Gen., Harrold Carswell, U. S. Atty., Tallahassee, Fla., for appellee.

Before TUTTLE, JONES and BROWN, Circuit Judges.

PER CURIAM.

This is another in that series of cases¹ sired by Smith v. United States, D.C.N.D. Fla., 110 F.Supp. 892, for the recovery of "transportation of persons" taxes alleged to have been paid by the operators of fishing boats. In the Smith case, it was held that the tax imposed by section 3469 of the Internal Revenue Code of 1939, 26 U.S.C.A. § 3469, had been illegally asserted in the cases of operators of fishing boats, and the taxpayer, appellant herein, was allowed a recovery of such taxes paid for the months of February through April, 1951, in the total amount of $118.05. The Government did not appeal that decision and does not now take issue with the law of that case.

This case is an extension of the Smith case, supra, in that appellant now seeks to recover the taxes alleged to have been paid by him for the ensuing months of June, July, and August, 1951. Section 3471(a) of the 1939 Code, 26 U.S. C.A. § 3471(a), requires that such recovery can be had only upon proof that the claimant repaid the amount of such tax to the person from whom he collected it, or obtained the consent of such person to the allowance of such refund. Appellant seeks to avoid the application of this statute by asserting that he paid the taxes from his own funds and did not collect them from his patrons. By an opposing affidavit filed in response to appellant's motion for summary judgment, an internal revenue agent stated that, in support of a claim for refund bearing date of September 29, 1951, pertaining both to the $118.05 recovered in the prior Smith case as well as to the $243.24 sought to be recovered herein, appellant submitted a statement in which he admitted that he had collected the $243.24 "in taxes as such" and that this sum was paid by appellant after he had been advised by the agent of his liability for the collection and payment of the tax. This affidavit presented a clear issue of fact as to whether or not appellant had borne the economic burden of the tax, and one which could not be resolved by the court on motion for summary judgment. United States v. Walls, 5 Cir., 231 F.2d 440.

The court below, however, did not act on the motion for summary judgment, but rather dismissed the complaint with prejudice on the ground that appellant was "estopped for maintaining this further suit for the recovery of such transportation taxes" inasmuch as he "failed to include transportation taxes sought to be recovered herein in his earlier and similar suit in this Court * * * although he might well and should have done so * * *." It appears from the language used that the district court sought to apply the doctrine of res judicata (or collateral estoppel), designed to prevent a multiplicity of actions, to the case at hand. Speaking with reference to federal income taxes which are levied on an annual basis, the Supreme Court pointed out in Commissioner of Internal Revenue v. Sunnen, 333 U.S. 591, 598-600, 68 S.Ct. 715, 92 L.Ed. 898, that each year was the origin of a new liability...