Whitehall Lunch Club v. United States, M-394.
| Decision Date | 03 December 1934 |
| Docket Number | No. M-394.,M-394. |
| Citation | 80 Ct. Cl. 350,9 F. Supp. 132 |
| Parties | WHITEHALL LUNCH CLUB v. UNITED STATES. |
| Court | U.S. Claims Court |
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E. F. Colladay and Wilton H. Wallace, both of Washington, D. C. (James J. Cosgrove, of New York City, and Colladay, McGarraghy, Colladay & Wallace, of Washington, D. C., on the brief), for plaintiff.
Fred K. Dyar, of Washington, D. C., and Frank J. Wideman, Asst. Atty. Gen., for the United States.
Before BOOTH, Chief Justice, and GREEN, LITTLETON, WILLIAMS, and WHALEY, Judges.
This is an action to recover $38,521.80, with interest, being the amount of tax on dues and initiation fees collected from plaintiff from July 21, 1924, to June 28, 1928, on the ground that the plaintiff was not subject to a tax on club dues and initiation fees. Plaintiff filed claims for refund which were denied by the Commissioner of Internal Revenue.
The general issue is one of fact to be determined from all of the evidence in the case, and on this point we have followed with some slight changes in phraseology the findings of our Commissioner which we think fairly summarize the proper conclusions from the testimony, and from these findings it follows that the plaintiff is not subject to this tax.
The action presents what might be called a "border-line case," and the line, as we think, cannot be drawn any more definitely than was done by this court in the case of Union League Club of Chicago v. United States, 4 F. Supp. 929, 78 Ct. Cl. 351. The decision in that case applied only to the matter of social features, but we think the same rule applies when gymnasium facilities are considered; namely, that, where they are only incidental and not material to the purposes or existence of the club or its prosperity, the fact that some such facilities exist, especially when used by only a comparatively few members of the club, does not make the dues taxable.
Another defense is that the recovery of part of the tax paid by plaintiff is barred by the statute of limitations. The plaintiff filed two refund claims in the respective sums of $277.80 on July 21, 1928, and $38,244 on October 24, 1928. The smaller claim covers, among others, the sum of $168.40 for which an uncertified check was placed in the collector's hands on July 18, 1924, and deposited by him on July 21, 1924. The larger claim covers, among others, the sum of $3,500 which was by uncertified check delivered to the collector on October 22,...
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