United States v. Moroloy Bearing Service, 9786.

• Citation: 124 F.2d 373
• Decision Date: 15 December 1941
• Docket Number: No. 9786.,9786.
• Parties: UNITED STATES v. MOROLOY BEARING SERVICE OF OAKLAND, Limited.
• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)

124 F.2d 373 (1941)

UNITED STATES v. MOROLOY BEARING SERVICE OF OAKLAND, Limited.

No. 9786.

Circuit Court of Appeals, Ninth Circuit.

December 15, 1941.

Samuel O. Clark, Jr., Asst. Atty. Gen., Sewall Key, and George H. Zeutzius., Sp. Assts. to Atty. Gen., and Frank J. Hennessy, U. S. Atty., and Esther B. Phillips, Asst. U. S. Atty., both of San Francisco, Cal., for appellant.

Adolphus E. Graupner and Louis Janin, both of San Francisco, Cal., for appellee.

Before GARRECHT, HANEY, and HEALY, Circuit Judges.

HEALY, Circuit Judge.

This is a companion case to United States v. J. Leslie Morris Co., 124 F.2d 371, today decided.

Appellee taxpayer is engaged in the same character of enterprise as the J. Leslie Morris company, and its plant, located at Oakland, is affiliated with those of that company. It is incorporated under the laws of California. Monthly, from February, 1933, to August, 1936, in compliance with the demand of the Collector of Internal Revenue, it filed manufacturer's excise tax returns and made tax payments (totaling $1,099.80) under § 606(c) of the Revenue Act of 1932, 26 U.S.C.A. Int.Rev. Code, § 3403(c), in respect of sales of automobile connecting rods during that period.¹ It thereafter made claim for refund and on rejection of its claim brought suit, recovering a judgment from which the government appeals.

In the present case, as in United States v. J. Leslie Morris Co., supra, the taxpayer argues that it is a repairer, rather than a manufacturer or producer. Here, however, the taxpayer in support of the claim that its activities are not within the reach of the statute, makes a further contention, namely, that it did not make sales of the processed parts or accessories. We will notice the latter contention only, as the first has been disposed of adversely to appellee in the J. Leslie Morris opinion.

It is not clear what conclusion the trial court reached on the issue of sale. In its memorandum opinion the court states that the "right to recover herein depends upon whether the process of rebabbiting the connecting rods was one of manufacture or one of repair. If the former, the tax was properly imposed." However, the findings adopted are to the effect that the transactions amounted to "exchanging said repaired rods for other old and used rods plus, in cash, the charge for repairing", and that these exchanges did not constitute sales. The evidence is not substantially conflicting, and the findings in this respect involve mixed questions of law and fact.

Taxpayer states that its "method of disposal of connecting rods which it repairs is to exchange a repaired rod for a worn rod and charge only for the repair, as though it had been made on the turned-in worn rod and the customer waited for direct delivery. When a stock of rods is distributed to a jobber and no exchange rods are then received, appellee charges the forgings to the jobber to protect itself, but when the exchange rod is received the customer is credited with the amount charged. This is not a sales transaction but one of record protection."

The record does not appear entirely to bear out counsel's analysis of the process. During the period in question taxpayer did not deal with the general public — that is, with owners of automobiles — either in its...