F & D Trading Corp. v. United States

Per Curiam:

Senior Trial Judge Mastín G. White filed his recommended decision and findings of fact in this case on July 26, 1977. Plaintiffs have not excepted to any of the trial judge’s conclusions or findings.^* Defendant has excepted to the trial judge’s conclusions and his major findings on "The Erroneous Calculation Issue” and "The Tax Burden Issue.” Oral argument has been had, and the court has also considered the briefs. Since the court agrees with the trial judge’s recommended decision, with minor modifications, as well as with his findings, it hereby affirms and adopts that decision (as modified) and those findings as the basis for its judgment in this case. Accordingly, it is concluded that plaintiff F & D Trading Corporation is entitled to recover $52,192.98, plus statutory interest, and that plaintiff Great Empire Export and Import Corporation is entitled to recover $23,418.67, plus statutory interest. Judgment is entered for plaintiffs in those amounts.

The opinion of Senior Trial Judge White, with minor modifications, follows:

The plaintiffs, F & D Trading Corporation ("F & D”) and Great Empire Export and Import Corporation ("Great Empire”), are New York corporations. They sue to recover manufacturer’s excise taxes which they severally paid for certain quarters during the 1968-71 period (in the case of F & D) and for certain quarters during the 1969-70 period (in the case of Great Empire). The taxes in question were paid by the respective plaintiffs in connection with the sale in the United States of Volkswagen automobiles which the plaintiffs had purchased in Europe and imported into the United States.

A motion for partial summary judgment was filed by the defendant, and was denied by the court in an order dated November 21, 1975.

The great majority of the Volkswagens imported and sold in the United States during the periods material to this case were imported by a company known as Volkswagen of America, Inc. ("VW of A”). That company was a wholly owned subsidiary of Volkswagenwerk, AG, the West German manufacturer of Volkswagen automobiles; and it was the only company authorized by the manufacturer to import Volkswagens into the United States.

Although Volkswagenwerk, AG, would not sell Volk-swagens to anyone other than VW of A for importation and sale in the United States, there were, during the periods involved in this case, approximately 22 companies or individuals that operated in what was known as the "grey market,” involving the purchase of Volkswagens in Europe and the importation and sale of such automobiles in the United States. Both F & D and Great Empire were grey market importers of Volkswagens, as were Jattke & Capéis and Raymond E. Hamrick (names that will recur later in the opinion). The number of Volkswagens imported into the United States by all the grey market importers was, in the aggregate, relatively small, in comparison with the number imported by VW of A.

Although the plaintiffs and the other grey market importers were unable to purchase Volkswagens directly from the Volkswagen factory in Germany, they were able to purchase new Volkswagens in Europe from Volkswagen regional distributors or from Volkswagen dealers who had available for sale new Volkswagens which they had previously purchased from the factory or from regional distributors.

In order to meet consumer tastes in this country and U. S. Government safety standards for vehicles sold within the United States, certain modifications — known in the trade as "Americanization” — had to be made to the basic European Volkswagens. This process consisted of installing safety glass windshields, leatherette vinyl seatcovers, a mileage (rather than a kilometer) speedometer and odometer, and sealed-beam headlights. The Volkswagens imported by VW of A were Americanized by the Volkswagen factory in Germany, while the grey market importers had their vehicles Americanized in free trade zones at various port cities of Western Europe.¹

The different models of Volkswagens (e.g., sedans and hatchbacks) imported by VW of A into the United States were identical with Volkswagens of the same types imported by F & D, Great Empire, and other grey market importers.

Great Empire sold all of its imported Volkswagens at wholesale to F & D.

Most of the Volkswagens which F & D purchased in Europe and imported into the United States, as well as most of the Volkswagens which F & D purchased from Great Empire, were sold by F & D at wholesale to retailers. Some of F & D’s Volkswagens, however, were sold at wholesale to a company known as Drexel Motors, which operated at both the wholesale and the retail levels.

All of the Volkswagens imported by VW of A were sold by that company to regional distributors (one-third of which were owned by VW of A). The regional distributors, in turn, resold the automobiles at wholesale to retailers.

The Constructive Sale Price Issue

Great Empire, F & D, and VW of A, in computing and paying the quarterly manufacturer’s excise taxes on the Volkswagens which they imported and sold in the United States, used as their respective bases the prices at which they sold their imported Volkswagens. This was in accordance with section 4061 (a) of the Internal Revenue Code of 1954, I.R.C. § 4061(a)(1970) (amended 1971), which (for the periods involved in this case) imposed an excise tax of 7 percent on automobiles sold in the United States "by the manufacturer, producer, or importer,” the tax being based upon "the price for which so sold.”

As the Volkswagens imported by VW of A were sold by that company to regional distributors at prices that were somewhat less than the prices at which the plaintiffs sold their imported Volkswagens (VW of A obviously enjoyed an economic advantage as the wholly owned subsidiary of the manufacturer, selling to regional distributors), the manufacturer’s excise tax which VW of A paid on the sale of its imported Volkswagens was accordingly less than the tax which F & D or Great Empire was required to pay on the sale of identical types of Volkswagens.

In the present case, F & D and Great Empire contend, inter alia, that they were each entitled to use, for excise tax purposes, a constructive sale price based upon the price at which VW of A sold identical Volkswagens of the same types. In support of this contention, the plaintiffs cite the legislative history of the manufacturer’s excise tax and state in part that "Congress made it clear that the tax was intended as (1) a manufacturers’ tax, (2) the basis of which would be a price that would reflect normal manufacturing costs and (3) that the wholesale price, adjusted if necessary to exclude non-manufacturing costs, ordinarily would be such a price”; and, further, that "Any departure from the use of a uniform manufacturer’s excise tax base, where such a base was readily determinable among members of a single competitive group, obviously results in discrimination.” They conclude this line of argument with the following paragraph:

VWoA’s wholesale sales price more nearly approaches "cost of manufacture” than Great Empire’s price or F & D’s price. That is obvious. VWoA is an arm of the German factory and sells * * * [the great majority] of the Volkswagens sold in the United States. F & D and Great Empire are in the same business as VWoA and have to set their prices to compete with VWoA’s prices. Why should the government be permitted to discriminate in application of the MET [manufacturer’s excise tax] so as to deprive F & D and Great Empire of the possibility of making profits?

Unfortunately for the plaintiffs’ contention on this point, the court does not have the prerogative of ignoring the plain language used by Congress in order to achieve a result which (according to the plaintiffs) would be more rational and fair than that flowing from the application of the literal statutory language. Section 4061(a) of the 1954 Code states that the excise tax of 7 percent on automobiles sold in the United States "by the manufacturer, producer, or importer” is to be based upon "the price for which so sold”; and the syntax plainly indicates that it is the price for which the particular "manufacturer, producer, or importer” — whether it be VW of A, or F & D, or Great Empire — sells the automobiles that provides the base for the computation of the tax to be paid by the seller. (Although section 4216(b) of the 1954 Code , I.R.C. § 4216 (b)(1970) (amended 1971), permits the use of a constructive sale price under certain circumstances, that section is not pertinent to the present discussion.)

The Supreme Court has said that the words of statutes, including revenue acts, should be interpreted, where possible, in their ordinary, everyday senses. Crane v. Commissioner, 331 U.S. 1, 6 (1947). Under that criterion the court is required in the present case to apply the literal statutory language and to reject the plaintiffs’ contention that they were entitled to compute their manufacturer’s excise tax on a constructive sale price based upon the price at which VW of A sold its imported Volkswagens, rather than upon their own actual sale price.

As a fail-back position, the plaintiffs assert that they were entitled to use, for excise tax purposes, a constructive sale price based upon the same formula which Jattke & Capéis or Raymond E. Hamrick used in computing the manufacturer’s excise tax on sales of imported Volk-swagens of the same types as those sold by the plaintiffs.

Jattke & Capéis was a grey market importer of Volk-swagens into the United States from Europe and a competitor of F & D and of Great Empire. The Volk-swagens imported by Jattke & Capéis were sold by that company at wholesale to retailers. The evidence in the record shows that sometime prior to April 29, 1965, a representative of Jattke & Capéis orally requested that Roland L. Wolfe, a representative of the U. S. Internal Revenue Service stationed in London, England, furnish to him information as to the price of Volkswagens shipped to the United States on which the manufacturer’s excise tax should be computed. Mr. Wolfe responded to this inquiry in writing on April 29, 1965, and stated in part as follows:

[I]t seems that the price of the automobile plus Americanization should be considered the sales price for the purpose of the excise tax and the excise tax should not be computed on the delivery, forwarding fee, insurance, finance charges and freight. There is a requirement, however, that when the amount billed separately as freight is in excess of the actual transportation charge only the amount billed as freight in excess of the actual charge is taxable as part of the sales price.

As the advice which the IRS representative gave to Jattke & Capéis was inconsistent with the plain language of section 4061(a) of the 1954 Code, previously discussed, such advice was erroneous. Nevertheless, Jattke & Capéis followed such advice; and, at times material to this litigation, the manufacturer’s excise tax which Jattke & Capéis paid on the Volkswagens which that company imported from Europe and sold in the United States was based upon the price at which the vehicles were purchased in Europe, plus the cost of Americanizing the vehicles.

Raymond E. Hamrick was also a grey market importer of Volkswagens into the United States from Europe, and he was a competitor of F & D and of Great Empire. He conducted his business in Florida. Some of Mr. Hamrick’s imported Volkswagens were sold by him at wholesale to retailers, and others were sold by him at retail to consumers. In the early 1960’s, Mr. Hamrick was orally advised by a local Internal Revenue Agent that he should use 75 percent of his actual sale price as the base on which to compute the manufacturer’s excise tax on the Volk-swagens which he imported from Europe and sold in this country. This advice was erroneous insofar as Mr. Ham-rick’s sales at wholesale to retailers were concerned. Nevertheless, during periods involved in the present litigation, Mr. Hamrick continued to use the formula of 75-percent-of-sale-price in computing the manufacturer’s excise tax on his sales of imported Volkswagens at wholesale to retailers.

The Internal Revenue Service was not required to permit the present plaintiffs to discharge their manufacturer’s excise tax liability on the basis of erroneous advice which lower-echelon personnel of the IRS gave to other taxpayers. In the first place, the record is wholly devoid of evidence tending to show that either the IRS representative in London or the Internal Revenue Agent in Florida was authorized to act for the Commissioner of Internal Revenue in issuing revenue rulings. It is well established that the Government is not bound by the unauthorized acts of its agents, and is not estopped to assert the lack of authority as a defense. Bornstein v. United States, 170 Ct. Cl. 576, 582, 345 F. 2d 558, 562 (1965).

Furthermore, even if the erroneous advice that was given to Jattke & Capéis and to Raymond E. Hamrick had been in the nature of revenue rulings, such rulings, being based upon erroneous statutory interpretations, could subsequently have been corrected by the Internal Revenue Service and the corrections could have been applied retroactively to the recipients of the erroneous advice. The doctrine of equitable estoppel is not a bar to the correction by the IRS of a mistake of law. Automobile Club v. Commissioner, 353 U.S. 180, 183 (1957); cf. Exchange Parts Co. v. United States, 150 Ct. Cl. 538, 543, 279 F. 2d 251, 254 (1960).

In any event, assuming arguendo that the erroneous advice to Jattke & Capéis and to Raymond E. Hamrick could be considered as revenue rulings, such rulings, being unpublished, could not be relied on by third persons, such as the present plaintiffs, who had not themselves requested a ruling. Bornstein v. United States, 170 Ct. Cl. at 584-86, 345 F. 2d at 563-64; cf. International Business Machines Corp. v. United States, 170 Ct. Cl. 357, 343 F. 2d 914 (1965), cert. denied, 382 U.S. 1028 (1966).

Another contention made by the plaintiff F & D is to the effect that, in computing its manufacturer’s excise tax on all sales of imported Volkswagens, it was entitled to base the computation on the highest sale price of such vehicles to Drexel Motors.

It has been stated previously in the opinion that F & D sold most of its imported Volkswagens to retailers, but sold some of the imported vehicles to Drexel Motors, a company that operated both as a wholesaler selling automobiles to retailers and as a retailer selling automobiles directly to consumers. F & D made nine sales of imported Volk-swagens to Drexel Motors in 1968, seven sales in 1969, one sale in 1970, and one sale in 1971.

Because of the sales to Drexel Motors, F & D relies on section 4216 (b) (2) of the 1954 Code, I.R.C. § 4216 (b) (2) (1970) (amended 1971), which provides as follows:

(2) Special rule.

If an article is sold at retail or to a retailer, and if—

(A) the manufacturer, producer, or importer of such article regularly sells such articles at retail or to retailers, as the case may be,

(B) the manufacturer, producer, or importer of such article regularly sells such articles to one or more wholesale distributors in arm’s length transactions and he establishes that his prices in such cases are determined without regard to any tax benefit under this paragraph,

(C) in the case of articles upon which tax is imposed under section 4061(a) (relating to automobiles, trucks, etc.), the normal method of sales for such articles within the industry is not to sell such articles at retail or to retailers, or combinations thereof, and

(D) the transaction is an arm’s length transaction, the tax under this chapter shall (if based on the price for which the article is sold) be computed on whichever of the following prices is the lower: (i) the price for which such article is sold, or (ii) the highest price for which such articles are sold by such manufacturer, producer, or importer to wholesale distributors (other than special dealers).

This particular argument of F & D cannot be accepted because, as previously stated, Drexel Motors operated both as a wholesaler and as a retailer, and the evidence in the record does not show whether the Volkswagens which F & D sold to Drexel Motors were, in turn, resold by Drexel Motors at wholesale to retailers or at retail directly to consumers. In purchasing Volkswagens from F & D, Drexel Motors may well have been acting as a retailer acquiring vehicles for resale to consumers. Also, in view of the number of sales by F & D to Drexel Motors, particularly the single sale in 1970 and the single sale in 1971, it would be difficult to find that such sales were made "regularly.” Consequently, in connection with this particular point, F & D failed to meet its burden by proving that it "regularly” sold imported Volkswagens to- "one or more wholesale distributors.”

For the reasons stated in this part of the opinion, neither F & D nor Great Empire was entitled to use a constructive sale price in computing the manufacturer’s excise tax due on the sale of imported Volkswagens.

The Erroneous Calculation Issue

The quarterly manufacturer’s excise tax returns were prepared for Great Empire and for F & D by Morris Schuller, a certified public accountant. In addition to performing accounting services for both of these companies, Mr. Schuller participated in the business activities of F & D to the extent of sometimes acting for F & D in making sales of automobiles imported by that company. Also, on at least one occasion, Mr. Schuller acted for F & D in purchasing automobiles for importation into the United States.

In order to prepare the quarterly manufacturer’s excise tax returns for Great Empire and for F & D, Mr. Schuller would go to the offices of these companies. Prior to Mr. Schuller’s visits to the companies’ offices, Irwin Losch, an employee of each company, working from the companies’ invoices of sales, would prepare adding machine tapes calculating the total dollar value of the taxable sales of imported Volkswagens made by each company during the particular quarter. As the invoices did not reflect both a sale price and an excise tax, but, rather, only a sale price, Mr. Schuller calculated the tax liability to be shown on a particular return by dividing the total dollar amount shown on the pertinent tape by 107, and then multiplying the quotient by 7. The product calculated in this fashion was inserted on the quarterly manufacturer’s excise tax return for the particular company, F & D or Great Empire, and a check remitting the tax shown to be due was sent to the Internal Revenue Service with the return.

The preponderance of the evidence in the record shows that Irwin Losch — for reasons that can only be surmised, as Irwin Losch is dead — made errors in preparing the adding machine tapes of the quarterly invoices of F & D and of Great Empire which he prepared for Morris Schuller and which were used by the latter as the basis for computing the quarterly manufacturer’s excise tax owed by each company. Mr. Losch included in his quarterly totals of supposedly taxable sales by F & D and by Great Empire some sales which, according to the preponderance of the evidence in the record, were not taxable.² As the inflated totals of supposedly taxable sales were used by Morris Schuller in preparing the quarterly manufacturer’s excise tax returns for F & D and for Great Empire, Mr. Schuller’s calculations as to the taxes due by F & D and by Great Empire were, therefore, erroneously high.

As indicated in finding 9(b), the errors mentioned in this part of the opinion resulted in overpayments of the manufacturer’s excise tax by Great Empire in the total amount of $23,418.67, and in overpayments by F & D in the total amount of $52,192.98.

The Tax Burden Issue

As it has been determined in the immediately preceding part of this opinion that the plaintiffs made overpayments of the manufacturer’s excise tax, it becomes necessary to consider whether the plaintiffs themselves bore the economic burden of the tax overpayments or shifted such burden to the purchasers of the imported Volkswagens.

In this connection, section 6416(a) of the 1954 Code, I.R.C. § 6416(a), provides in part as follows:

(a) Condition to allowance.

(1) General rule.

No credit or refund of any overpayment of tax imposed by * * * chapter 32 (manufacturers taxes), shall be allowed or made unless the person who paid the tax establishes * * * that he—

(A) has not included the tax in the price of the article with respect to which it was imposed and has not collected the amount of the tax from the person who purchased such article * * *.

When F & D or Great Empire sold imported Volk-swagens, the sale price was always the result of negotiations between the seller and the purchaser; and, in effect, the sale price was set to meet the then-current price being charged by competitors, principally VW of A and Jattke & Capéis. There was never an instance where a sale price of Volkswagens was first negotiated between F & D or Great Empire and a purchaser, and an amount to cover the excise tax on the sale was then added to the purchase price. Actually, there was never any discussion in the negotiations over the sale price as to who would bear the economic burden of the manufacturer’s excise tax. To F & D and Great Empire, the manufacturer’s excise tax was one of the costs involved in doing business; and they always endeavored to negotiate a sale price which would cover all costs, including the cost of purchasing the vehicles in Europe, the cost of Americanization, the cost of transportation from Europe, and the cost of the excise tax, and which would leave a margin for profit. No separate excise tax amount ever appeared on an F & D or Great Empire invoice (although the printed invoices contained the general statement, "excise tax included”).

Neither F & D nor Great Empire ever collected any dollars that were identified in any way as manufacturer’s excise tax, nor did they keep any account of manufacturer’s excise tax liability on their books.

Also, as stated in another part of the opinion, the amount of the manufacturer’s excise tax on sales of imported Volks wagens was never computed when the sales were made. Instead, after the close of a particular quarter, a certified public accountant computed the amount of the manufacturer’s excise tax payable by F & D or by Great Empire on all sales made during the quarter. He did so by dividing each company’s total dollar volume of sales by 107, and then multiplying the quotient by 7. This computation was made, of course, after the various prices had been determined and fixed through negotiations; and the later determination of the amount of excise tax due did not affect in any way the amount of the sale price negotiated in the various sale transactions during the quarter.

It appears, therefore, that each plaintiff absorbed the manufacturer’s excise tax as one of the costs of doing business, and "has not included the tax in the price of the article with respect to which it was imposed and has not collected the amount of the tax from the person who purchased such article,” within the meaning of this language as used in section 6416(a) of the 1954 Code.

Conclusion

It is my opinion that, because of the erroneous computations, (1) the plaintiff F & D is entitled to recover $52,192.98 (plus statutory interest), and (2) the plaintiff Great Empire is entitled to recover $23,418.67 (plus statutory interest).

FINDINGS OF FACT

The court, having considered the evidence, the decision and findings of Senior Trial Judge Mastín G. White, and the briefs and arguments of counsel, makes findings of fact as follows:

1. (a) Plaintiff F & D Trading Corporation ("F & D”) is a New York corporation. It was organized in 1961 by Fred S. Drimer, an individual who was born in Austria but who is a naturalized American citizen.

(b) F & D had its principal offices in New York City during the periods involved in this suit, and now has its offices in Long Island City, New York.

(c) All of the capital stock in F & D was, and is, owned by Fred S. Drimer, who has always been the corporation’s president.

2. (a) Plaintiff Great Empire Export and Import Corporation ("Great Empire”) is a New York corporation. It was organized in 1946 by Louis Berg, a naturalized American citizen who was born in Austria.

(b) Great Empire had its principal office in New York City during the periods involved in this suit, and now has its offices in Long Island City, New York.

(c) All of the capital stock of Great Empire was, and is, owned by Louis Berg, who has always been the corporation’s president.

3. (a) Great Empire, from its inception until the 1960’s, was in the business of lending money and importing various items.

(b) In the 1960’s, Great Empire began to import Volkswagen automobiles ("Volkswagens”) into the United States from Europe and to sell the cars in this country.

(c) During the quarter-years involved in this litigation, Great Empire was in the business of importing automobiles into the United States for resale.

4. F & D’s business from its inception was importing Volkswagens from Europe and selling them in the United States.

5. With respect to its importation and sale of Volk-swagens, Great Empire filed United States manufacturer’s excise tax returns, paid excise tax, and in this case demands refunds of such taxes as follows:

6. With respect to its importation and sale of Volk-swagens, F & D filed United States manufacturer’s excise

tax returns, paid excise tax, and in this case demands refunds of such taxes as follows:

7. Both Great Empire’s and F & D’s demands for refund of the excise taxes described in findings 5 and 6 are based upon the following contentions: (a) that they made mechanical bookkeeping errors in calculating the manufacturer’s excise tax liabilities reflected on the quarterly returns involved in the case, and thus over-reported and overpaid their taxes by certain amounts; (b) that in calculating their manufacturer’s excise tax liabilities, both Great Empire and F & D should be permitted to utilize (without regard to their actual sale price of Volkswagens) the same tax bases which their competitors used with respect to identical Volkswagens which the competitors imported and sold; and (c) that the excise taxes which are claimed by Great Empire and F & D were not passed on to customers but, rather, were absorbed by F & D and Great Empire.

8. (a) The quarterly manufacturer’s excise tax returns were prepared for Great Empire and for F & D by Morris Schuller, a certified public accountant. In addition to performing accounting services for both of these companies, Mr. Schuller participated in the business activities of F & D to the extent of sometimes acting for F & D in making sales of automobiles imported by that company. Also, on at least one occasion, Mr. Schuller acted for F & D in purchasing automobiles for importation into the United States.

(b) In order to prepare the quarterly manufacturer’s excise tax returns for Great Empire and for F & D, Morris Schuller would go to the offices of these companies. Prior to Mr. Schuller’s visits to the offices, an employee of each company, Irwin Losch (now deceased), working from the companies’ invoices of sales, would prepare adding machine tapes calculating the total dollar volume of the taxable sales of imported Volkswagens (and the few other cars) made by F & D, and the total dollar volume of such sales made by Great Empire, during the quarter for which returns were to be prepared. As the invoices did not reflect a sale price and an excise tax, but, rather, only a sale price, Mr. Schuller calculated the tax liability to be shown on a particular return by dividing the total dollar amount shown on the pertinent tape by 107 and then multiplying the quotient by 7. The product calculated in this fashion was inserted on the quarterly manufacturer’s excise tax return for the particular company, F & D or Great Empire, and a check remitting the tax shown to be due was sent to the Internal Revenue Service with the return.

(c) Books of account of the companies were prepared by Mr. Schuller after the end of the year to facilitate preparation of the federal income tax returns.

9. (a) The preponderance of the evidence in the record shows that Irwin Losch (for reasons that can only be surmised, as Irwin Losch is dead) made errors in preparing the adding machine tapes of the quarterly invoices of F & D and of Great Empire which he prepared for Morris Schuller and which were used by the latter as the bases for computing the quarterly manufacturer’s excise taxes owed by F & D and by Great Empire, respectively (see finding 8). Mr. Losch included in his quarterly totals of supposedly taxable sales by F & D and by Great Empire some sales which, according to the preponderance of the evidence in the record, were not taxable. As the inflated totals of supposedly taxable sales were used by Morris Schuller in preparing the quarterly manufacturer’s excise tax returns for F & D and for Great Empire, Mr. Schuller’s calculations as to the taxes due by F & D and by Great Empire were, therefore, erroneously high.

(b) Possible reasons for the errors referred to in paragraph (a) of this finding are that Irwin Losch included in his quarterly totals for F & D some sales by F & D of Volkswagens which that company had purchased from Great Empire and on which Great Empire paid the manufacturer’s excise tax, and that he included in his quarterly totals for both F & D and Great Empire some sales which were not concluded during the particular quarter.

(c) The dollar magnitude of the errors referred to in paragraph (a) of this finding are reflected in the following table:'

10. Volkswagens imported into the United States for resale during the 1960-71 period came through two channels. The primary source was Volkswagen of America, Inc. ("VW of A”), the wholly owned subsidiary and only factory-authorized importer of the West German Volkswagen manufacturer, Volkswagenwerk, AG. The great majority of all Volkswagens imported and sold in the United States were brought in and sold by VW of A. After importation into the United States, VW of A sold these Volkswagens to 14 regional distributors, five of which were wholly-owned subsidiaries of VW of A. These regional distributors, in turn, resold the Volkswagens to retail dealers, who sold them to consumers.

11. (a) The remaining relatively small percentage of the Volkswagens imported and sold in the United States were brought in and sold by importers such as F & D, Great Empire, and about 20 others. All of these importers were known in the trade as "grey market” importers. The mechanics of purchasing cars and the marketing structure followed by F & D, Great Empire, and the other grey market importers are indicated in paragraph (b) of this finding.

(b)As VW of A was the only factory-authorized importer of Volkswagens in the United States, it was impossible for other individuals or companies to purchase, for importation into the United States, Volkswagens directly from the Volkswagen factory in Germany. However, F & D and Great Empire (and also their grey market competitors) were able to purchase new Volkswagens in Europe from Volkswagen regional distributors or from Volkswagen dealers who had available for sale new Volkswagens which they had previously purchased from the Volkswagen factory or from regional distributors.

12. (a) The Volkswagens which Great Empire bought in Europe and imported into the United States were sold by GreatEmpire exclusively at wholesale to F & D.

(b) Most of the Volkswagens which F & D purchased in Europe and imported into the United States, and most of the Volkswagens which F & D purchased from Great Empire, were sold by F & D at wholesale to retailers, but some were sold at wholesale to Drexel Motors (see paragraph (d) of this finding). Nine sales were made to Drexel Motors by F & D in 1968, seven were made in 1969, one was made in 1970, and one was made in 1971.

(c) Neither Great Empire nor F & D ever sold imported automobiles at retail directly to consumers.

(d) Drexel Motors operated at both the wholesale and the retail levels. It is not known whether the Volkswagens which Drexel Motors purchased from F & D were sold by Drexel Motors at wholesale or at retail.

13. (a) To meet consumer tastes and United States Government safety standards for vehicles sold within the United States, certain modifications, known in the trade as "Americanization,” had to be made to the basic European Volkswagens. This process consisted of installing safety glass windshields, leatherette vinyl seat covers, a mileage (rather than a kilometer) speedometer and odometer, and sealed-beam headlights.

(b) The vehicles imported by VW of A were "Americanized” at the Volkswagen factory in Germany.

(c) The Volkswagens purchased in Europe by F & D, Great Empire, and other grey market importers were either manufactured for the United States market (for sale in Europe to either American servicemen or tourists) or were European models. The European models were Americanized in free trade zones at port cities of Western Europe utilized by the various purchasers. The average Americanization cost on European models was from $55 to $65 per automobile.

(d) The United States market Volkswagens and the Americanized European models purchased by F & D and by Great Empire were shipped to the United States by the respective purchasers.

(e) The Americanized Volkswagens imported and sold by F & D, Great Empire, and other grey market importers were identical with those imported and sold by VW of A.

14. During the quarters in issue, F & D and Great Empire, along with their main competitor, VW of A, and grey market competitors such as Jattke & Capéis and Raymond E. Hamrick, imported and sold identical models of Volkswagens. However, the manufacturer’s excise tax was computed and paid by these persons through the utilization of different bases on identical types of vehicles, as indicated in other findings.

15. (a) Jattke & Capéis was a grey market importer of Volkswagens into the United States from Europe and a competitor of F & D and of Great Empire.

ft)) Sometime prior to April 29, 1965, Ray Culbertson, Jr., representing Jattke & Capéis, orally requested that Roland L. Wolfe, a representative of the U.S. Internal Revenue Service stationed in London, England, furnish to him information as to the price of Volkswagens shipped to the United States on which the manufacturer’s excise tax should be computed.

(c) On April 29, 1965, Mr. Wolfe responded in writing to Mr. Culbertson’s inquiry, and stated in part as follows:

* * * [I]t seems that the price of the automobile plus Americanization should be considered the sales price for the purpose of the excise tax and the excise tax should not be computed on the delivery, forwarding fee, insurance, finance charges and freight. There is a requirement, however, that when the amount billed separately as freight is in excess of the actual transportation charge only the amount billed as freight in excess of the actual charge is taxable as part of the sales price.

I hope that the above will enable you to compute the proper excise tax on shipments requiring the imposition of such tax.

(d) At all times material to this litigation, the manufacturer’s excise tax which Jattke & Capéis paid on the Volkswagens which that company purchased in Europe and imported into the United States was based upon the purchase price of the vehicles in Europe, plus the cost of Americanizing the vehicles.

(e) The Volkswagens which Jattke & Capéis purchased in Europe and imported into the United States were sold by that company at wholesale to retailers.

(f) If F & D, in computing its manufacturer’s excise tax liability for the periods involved in the present litigation, had utilized the formula referred to in paragraph (d) of this finding, F & D’s total excise tax liability would have amounted to $123,485.80 (instead of $158,669.19).

(g) If Great Empire, in computing its manufacturer’s excise tax for the periods involved in the present litigation, had utilized the formula referred to in paragraph (d) of this finding, Great Empire’s total excise tax liability would have amounted to $39,683.21 (instead of $45,465.48).

16. (a) Raymond E. Hamrick was the owner of a company known as Ray’s Auto Sales, located in Jacksonville, Florida. He was a grey market importer of Volk-swagens into the United States from Europe and was a competitor of F & D and of Great Empire.

(b) Ray’s Auto Sales sold some of its imported Volk-swagens at wholesale to retailers and sold others at retail directly to consumers.

(c) In the early 1960’s, Mr. Hamrick was advised by a local Internal Revenue Agent that he should use 75 percent of his actual sale price as the base on which to compute his manufacturer’s excise tax liability on the imported Volk-swagens. Mr. Hamrick, during periods involved in the present litigation, continued to use that formula with respect to his sales of Volkswagens at wholesale to retailers and at retail to consumers.

(d) If F & D, in computing its manufacturer’s excise tax liability during the periods involved in the present litigation, had utilized the formula referred to in para-, graph (c) of this finding, F & D’s total excise tax liability would have amounted to $127,332 (instead of $158,669.19).

(e) If Great Empire, in computing its manufacturer’s excise tax liability during the periods involved in the present litigation, had utilized the formula referred to in paragraph (c) of this finding, Great Empire’s total excise tax liability would have amounted to $36,486.45 (instead of $45,465.48).

17. During the periods involved in the present litigation, the manufacturer’s excise tax liability of VW of A on the Volkswagens which it imported into the United States was based upon the price at which the imported automobiles were sold by VW of A to regional distributors in this country. The regional distributors were themselves wholesalers, as they resold the Volkswagens to retailers. (See finding 10.)

18. The following table sets forth the number of vehicles imported by F & D, the manufacturer’s excise tax imposed by the Internal Revenue Service on those particular Volkswagens (under the IRS theory that the tax is based on the sale price received by the importer), and the manufacturer’s excise tax imposed on VW of A for the same number of identical vehicles imported and sold by VW of A:

19. The following table sets forth the number of vehicles imported by Great Empire, the manufacturer’s excise tax imposed by the Internal Revenue Service on those particular Volkswagens (under the IRS theory that the tax is based on the sale price received by the importer), and the manufacturer’s excise tax imposed on VW of A for the same number of identical vehicles imported and sold by VW of A:

20. All of F & D’s and Great Empire’s printed invoices contained the phrase, "excise tax included.”

21. (a) At all material times, the sale price of Volk-swagens sold by F & D and by Great Empire was negotiated between the seller and the purchaser and was set to meet the price then being charged by competitors, principally VW of A and Jattke & Capéis.

(b) At no time in the history of F & D and of Great Empire was there an instance where the sale price of Volkswagens was first negotiated and an excise tax was then added, and there was never any discussion in the negotiations over the sale price of who would bear the burden of the manufacturer’s excise tax. To F & D and Great Empire, the manufacturer’s excise tax was one of the costs involved in doing business; and they always endeavored to negotiate a sale price that would cover all costs, including the cost of purchasing the automobiles in Europe, the cost of Americanization, the cost of transportation from Europe, and the cost of the excise tax, and that would leave a margin for profit.

(c) No separate excise tax amount ever appeared on an F & D or Great Empire invoice.

22. Fiscal data with respect to the operations of Great Empire are as follows:

(a) For year ending October 31, 1969:

Percent Amount

Sales Receipts $1,460,544 o o

Cost of Goods Sold 1.371,962 CO CO CO CO

Gross Profit 88,582 CO

Expense 82,234 CO lO

Income Tax 1,554 1H

Net After Tax $ 4,794 CO CO

(b) For year ending October 31, 1970:

$ 844,784 Sales Receipts

Cost of Goods Sold 796,023 CO bo ’ CO

Gross Profit 48,761 5.77

Expense 44,226 5.24

Income Tax 1,031 .12

Net After Tax .41 $ 3,504

23. Fiscal data with respect to the operations of F & D are as follows:

(a)For year ending January 31, 1969:

Amount Percent

Sales Receipts $5,780,876 100

Cost of Good Sold! 5,521,540 95.51

Gross Profit $ 259,336 4.48

Trucking Income 97,459 1.68

Expense 332,998 5.76

Income Tax 5,759 .09

Net After Tax 18,038 .32

(b)For year ending January 31, 1970:

Amount Percent

Sales Receipts $2,589,169 100

Cost of Goods Sold 2,447,589 94.53

Gross Profit $ 141,580 5.47

Trucking Income 55,724 2.15

Expense 199,867 7.71

Income Tax -0-

Net After Tax $ (2,563)

(c) For year ending January 31, 1971:

Sales Receipts $1,370,130 100

Cost of Goods Sold 1,291,464 94.25

Gross Profit $ 78,666 5.74

Trucking Income 23,448 1.71

Expense 99,097 7.23

Income Tax 697 .05

Net After Tax $ 2,320 .16

(d) For year ending January 31, 1972:

Sales Receipts $ 450,827 100

Cost of Good Sold, 430,286 95.44

Gross Profit $ 20,541 4.56

Trucking Income 11,385 2.53

Expense 30,922 6.85

[Income Tax 221 .04

'Net After Tax 783 .17

24. Neither F & D nor Great Empire ever collected dollars in any way identified as manufacturer’s excise tax, nor did they keep any account of manufacturer’s excise tax liability on their books. Rather, quarterly, F & D and Great Empire calculated their manufacturer’s excise tax liability and prepared their manufacturer’s excise tax returns in the manner described in finding 8.

25. F & D and Great Empire filed timely claims for refund of the taxes involved in this suit, and later timely filed this suit for refund.

CONCLUSION OF LAW

Upon the foregoing findings and opinion, the court concludes as a matter of law that the plaintiffs are entitled to recover; and it is therefore adjudged and ordered (1) that the plaintiff F & D Trading Corporation recover of and from the United States the sum of fifty-two thousand one hundred ninety-two dollars and ninety-eight cents ($52,192.98), plus statutory interest, and (2) that the plaintiff Great Empire Export and Import Corporation recover of and from the United States the sum of twenty-three thousand four hundred eighteen dollars and sixty-seven cents ($23,418.67), plus statutory interest.

* In particular, plaintiffs have not challenged the trial judge’s opinion or recommended decision, adverse to them, on "The Constructive Sale Price Issue.”

1 The grey market importers were able to purchase some Volkswagens which had been specially manufactured for sale in Europe to American servicemen or tourists. These vehicles did not require Americanization prior to their importation into the United States.

2 Possible explanations for the errors is that Irwin Losch included in his quarterly totals for F & D some sales of Volkswagens which F & D had purchased from Great Empire and on which the latter company paid the manufacturer’s excise tax; and that he included in his quarterly totals for both F & D and Great Empire some sales which were not concluded during the particular quarter.