DocketNumber: Civ. No. 10356-M
Citation Numbers: 222 F. Supp. 329
Judges: Dyer
Filed Date: 6/22/1962
Status: Precedential
Modified Date: 11/26/2022
This is a suit for tax refund for certain payments of transportation tax brought by the proprietor of a sightseeing tour. Involved are two payments in 1957 and four in 1958, amounting, with certain penalties and interest, to a total claim of $1,465.80. This Court has jurisdiction of the parties and subject matter under 28 U.S.C. § 1346(a) (1). It is claimed by the Government that the tax was due under 26 U.S.C. § 4261. Plaintiff denies that the act applies at all to his business, but especially objects to its application to those items, other than transportation, which are involved in the all expense tour. Plaintiff’s suit was dismissed upon a former trial for lack of standing to sue under 26 U.S.C. § 6415; that judgment was reversed upon appeal. (McGowan v. United States, 5 Cir., 296 F.2d 252, 1961)
The cause came on for final hearing on submission by the parties upon the file and record made in the former trial. Essentially the points left open by the opinion of the Appellate Court are: the Plaintiff’s standing to sue, dependent upon his having borne the economic burden; and the further questions of the coverage of 26 U.S.C. § 4261 and the effect of various Internal Revenue regulations thereunder.
In so far as is necessary to its determination the Court finds the following facts from the evidence before it: Plaintiff and his wife purchased the sightseeing business from one McConnell in the Spring of 1957. The tour by boat through the canals of Fort Lauderdale stops at a Seminole Indian village to watch alligator wrestling. When Plaintiff purchased the business from McConnell in 1957 he continued to charge $2.00 for adults and $1.00 for children, as had his predecessor, without any regard specifically to the Federal Transportation Tax of which no notation appeared on the ticket. His accountant, in figuring his tax return, simply took Yu of the total receipts as the tax payable. Plaintiff employed a lecturer to accompany the trips.
If it is determined that Plaintiff has not borne the economic burden— it is admitted that he did not make the refund or obtain consents required by 26 U.S.C. § 6415 — that ends the suit, since Plaintiff would then have no standing to sue and the Court would not reach the merits. (United States v. Knowles, 5 Cir., 235 F.2d 177,1956; Davis v. United States, 5 Cir., 235 F.2d 174,1956; United States v. Walker, 5 Cir., 234 F.2d 910, 1956; United States v. Walls, 5 Cir., 231 F.2d 440, 1956). The burden of proof is upon Plaintiff. Neither Plaintiff nor Defendant has seen fit to introduce any evidence other than what was before the former trial court and the Court of Appeals, but each is content to rely upon that record. This Court is faced with a cold record which shows that three of Plaintiff’s witnesses, McConnell, Betty McGowan and Thomas J. McGowan, the last two of whom are interested parties,
Proceeding then to a consideration of the merits, the Court is of the opinion that the statute, 26 U.S.C. § 4261 covers all types of transportation, including that incidental to sight-seeing. While recognizing that only so much of the fare as is directly attributable to transportation should be taxed, where taxpayer charges a lump sum for transportation and other service, the burden is upon the taxpayer in a refund suit to show by adequately kept records just how much is attributable to transportation and how much to the other services. Puig v. Tomlinson, D.C., 143 F.Supp. 659. This Plaintiff has not borne such burden and has completely failed to segregate transportation charges from other charges — the Florida common motor carrier tariff is obviously not applicable in a situation such as this. Upon such a record Plaintiff would be entitled to no refund except for the policy embodied in Rev. Ruling 58-60 allowing a 25% reduction for a lecturer, (1958-1 Internal Rev.Cum.Bull. 436).
There is one aspect of this case to be noted. In view of the Court’s finding that Plaintiff bore the economic burden, his computation of the tax was erroneous and should have been computed at the 10% figure. Plaintiff cannot have it both ways. If he is to prevail because he has not collected the tax then he owed 10% of his gross transportation receipts less a deduction of 25'% thereof for the charge attributable to the use of a lecturer. Any payment in excess thereof should be refunded.
Parties will submit a judgment in accordance with this opinion which is being filed in lieu of the Findings of Fact and Conclusions of Law required by Federal Rule of Civil Procedure #52.