United States v. Curry
| Decision Date | 29 July 1941 |
| Docket Number | 3 Div. 350. |
| Citation | 3 So.2d 582,241 Ala. 569 |
| Court | Alabama Supreme Court |
| Parties | UNITED STATES et al. v. CURRY, Com'r of Revenue. |
Samuel O. Clark, Jr., Asst. Atty. Gen., Sewall Key, Berryman Green Lee A. Jackson, and Benjamin M. Brodsky, Sp. Assts. to the Atty. Gen., and Thomas D. Samford, U. S. Atty., of Montgomery, for appellant United States.
Thos S. Lawson, Atty. Gen., and John W. Lapsley and J. Edw Thornton, Asst. Attys. Gen., for appellee.
The questions presented for decision in this case are substantially the same as those discussed and decided in the case of King & Boozer v. State of Alabama, Ala. Sup., 3 So.2d 572, the two cases having been argued and submitted together.
It results therefore that the decree of the lower court is reversed and rendered on the authority of King & Boozer v. State of Alabama, Ala.Sup., 3 So.2d 572, this date decided.
Reversed and rendered.
BROWN, J., dissents, being of the opinion the decree of the lower court should be affirmed.
KNIGHT, J., not sitting.
The tax levy involved in this case, made by the State Department of Revenue, is not against the government or its instrumentalities, but against Dunn Construction Company, Inc., and John S. Hodgson and Company, independent contractors, operating for profit, under the provisions of Act No. 67, approved February 28, 1939, Acts 1939, pp. 96-109, Code 1940, Tit. 51, §§ 787-811, after the Act of Congress waiving exclusive jurisdiction over Camp McClellan, Anniston, Alabama, in respect to the levy and collection of these taxes, here in controversy.
To quote from the brief filed by the appellant:
The said above named parties were under contract with the United States to construct certain buildings at Fort McClellan, and engaged in said contract, to furnish "all labor, materials, tools, machinery, equipment and facilities and supplies necessary for the completion of the work." (Italics supplied.)
The material, the use of which constitutes the basis of the levy, was purchased by said contractors at retail out of the State of Alabama, and shipped into the State for use by said contractors and was used in the performance of their contract with the United States, was paid for by said contractors on their own account, including the tax, and they made claim for a refund on the ground that the levy was in effect a levy of tax against the United States.
Said Act No. 67, in Section II thereof provides: "An excise tax is hereby imposed on the storage,...
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...and immediate tax burden on the Federal Government and its instrumentalities. This case was followed by the same Court in United States v. Curry, 3 So.2d 582. We are informed counsel that the Attorney-General of the United States has joined in an application asking the Supreme Court of the ......
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Curry v. United States
...of their use of the purchased property in performance of their contract with the United States. The Supreme Court of Alabama reversed, 3 So.2d 582, holding that the tax infringed the constitutional immunity of the United States, for reasons stated in its opinion in King & Boozer v. State of......
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