Weiss v. United States

• Decision Date: 17 May 1943
• Docket Number: No. 8193.,8193.
• Parties: WEISS v. UNITED STATES.
• Court: U.S. Court of Appeals — Seventh Circuit

135 F.2d 889 (1943)

WEISS v. UNITED STATES.

No. 8193.

Circuit Court of Appeals, Seventh Circuit.

May 17, 1943.

Lewis F. Jacobson, Sidney C. Nierman, and David Silbert, all of Chicago, Ill., and Kenneth Carroad, of New York City (Jacobson, Merrick, Nierman & Silbert, of Chicago, Ill., and Clifford H. Rich, of New York City, on the brief), for appellant.

Samuel O. Clark, Jr., Sewall Key, A. F. Prescott, and N. Barr Miller, Asst. Attys. Gen., and J. Albert Woll, U. S. Atty., of Chicago, Ill., for appellee.

Before MAJOR, KERNER, and MINTON, Circuit Judges.

MAJOR, Circuit Judge.

This is an action by plaintiff to recover from defendant a refund in the sum of $556.88, previously paid as compensating taxes under the Agricultural Adjustment Act of 1933. The alleged right to a refund was predicated upon Sections 902 and 903 of Title VII of the Revenue Act of 1936, 7 U.S.C.A. §§ 644, 645. On motion of the defendant, the court below entered judgment dismissing plaintiff's complaint on jurisdictional grounds for failure to file a claim for refund, as required by Section 903 and Treasury Regulations promulgated in conformity therewith. The appeal comes from this judgment of dismissal.

Section 902 prescribes the substantive conditions which must be met in order to obtain a refund. The claimant is required either to prove that he bore the burden of the tax in the amount claimed, that he has not been relieved thereof nor reimbursed therefor, nor shifted such burden, directly or indirectly, or to prove that he has repaid unconditionally such amount to the person who bore the burden. Cf. Cudahy Packing Co. v. United States, 7 Cir., 126 F.2d 429.

Section 903 establishes the procedural requirements for recovery and provides: "No refund shall be made or allowed * * * unless, after the enactment of this Act, and prior to January 1, 1940, a claim for refund has been filed * * * in accordance with regulations prescribed by the Commissioner with the approval of the Secretary. All evidence relied upon in support of such claim shall be clearly set forth under oath. * * *"

By virtue of the authority contained in Section 903, there was promulgated Treasury Regulation 96. Art. 202 thereof provides: "It is incumbent upon the claimant to prepare a true and complete claim and to substantiate by clear and convincing evidence all of the facts necessary to establish his claim to the satisfaction of the Commissioner; failure to do so will result in the disallowance of the claim."

Plaintiff's claim for refund was filed with the Commissioner upon a prescribed form which was accompanied by instructions directing the claimant to set forth in Schedule D thereof the "facts and evidence, together with exhibits and other data showing the amount of the burden of the tax borne by the claimant and not shifted to other persons." In Schedule D, plaintiff listed the quantities of cotton materials imported and the amount of compensating tax paid to the Collector of Customs. To this list, he added the following statement:

"That claimant absorbed these compensation (sic) tax payments as an additional item of expense which he was compelled to absorb because it was impossible to add this expense to the established sales price of the handkerchief on which the tax was paid.

"That claimant having absorbed this tax is entitled to this refund."

Notwithstanding that the Commissioner on two occasions wrote to the plaintiff calling his attention to the fact that no evidence had been submitted in support of his claim, nothing was furnished other than the statement contained in Schedule D. His attention was particularly called by the...