secondly, that the action of the Commissioner and that of the Processing Tax Board of Review demonstrate that the tax paid was not a processing tax. Therefore, it is contended that some other type of Agricultural Adjustment Act tax was paid to the United States by plaintiff and, under Sections 902 and 905 of the Revenue Act of 1936, this court has jurisdiction of suits against the United States to recover the amounts involved. For reasons hereinafter noted, this court is unable to agree with the foregoing contention.
Section 902 of the Revenue Act of 1936 limiting refunds to "any amount paid by or collected from any claimant as tax under the Agricultural Adjustment Act [this chapter]" has been construed to restrict refunds to persons who have paid directly to the United States amounts imposed as tax under the Agricultural Adjustment Act; F. & F. Laboratories, Inc. v. Commissioner, 7 Cir., 1939, 104 F.2d 563, 565, 566; and it has been held that a vendee who has paid additional sums to his vendor because of Section 18 of the Agricultural Adjustment Act is not such a taxpayer within the meaning of the Revenue Act; Zinsmaster Baking Co. v. Commissioner, 8 Cir., 1940, 109 F.2d 738. Moreover, it would appear that it was for this very reason that, in the present case, plaintiff's claim for refund failed to secure administrative approval. In the Zinsmaster case, supra, some of the contracts involved were entered into prior to the effective dates of the taxes imposed and, as in the instant case, were silent on the question of added payments because of any processing taxes. As here, petitioner paid the contract prices plus the processing taxes, noted separately as such, to the processors who, in turn, paid the amounts to the Collector of Internal Revenue. In denying petitioner the status of a taxpayer entitled to any refunds under Title VII of the Revenue Act, the Eighth Circuit Court of Appeals declared:
"* * * the refund statutes applicable here restricted refunds to persons who had been liable for and had paid directly to the United States amounts imposed as tax under the Agricultural Adjustment Act." 109 F.2d at page 739.
"The fact that the payments of the amounts separately and specially noted as processing taxes were so made by petitioner to its vendors precludes attaching any importance to the omission from the contracts of any express promise to pay the processing taxes. The payments made by petitioner under the contracts which contained no promise to pay the processing taxes can not be distinguished so far as the right to refund is concerned, from the payments under the contracts which expressly obligated it to pay them." 109 F.2d at page 740.
Compare, also,G.C.M. 21540, Int.Rev. Bull.1939-39-10027, in which the Chief Counsel for the Bureau of Internal Revenue reached the same conclusion, observing: "In the instant case, the amounts involved were paid to processors under contracts existing prior to the effective date of the tax. The tax was added to the contract price on all of the invoices, even though some of the contracts did not permit the addition of the tax. As no tax was assessed against the M Company and no tax was paid by it to the United States, it is the opinion of this office that the M Company is not entitled to refund of such amounts."
Of significance, also, is Trunz Pork Stores, Inc. v. Rasquin, 2 Cir., 1938, 100 F.2d 399, holding that where sums have been collected by the Collector of Internal Revenue as processing taxes, as in the present case, the district courts of the United States are without jurisdiction to entertain suits for refunds thereof.
Furthermore, the statutory scheme appears to have contemplated only three types of Agricultural Adjustment Act taxes, namely, processing, compensating and floor stocks taxes, and not a fourth such as a "vendee's tax under Section 18". In this regard, the following excerpt from the Senate Report on the 1936 Revenue Bill would appear most relevant: "The invalidation of the Agricultural Adjustment Act by the decision in the Butler case has given rise to possible claims for approximately $960,000,000 which has been collected under that Act. This amount consists of approximately $850,000,000 in processing taxes; $98,000,000 in floor stocks taxes; $12,000,000 in compensating taxes. Processing taxes were paid by approximately 73,000 taxpayers; compensating taxes, by 75,000 taxpayers; and approximately 1,000,000 taxpayers paid floor stocks taxes." (Int.Rev.Bull.1939-1, pt. 2, p. 699.)
In Anniston Mfg. Co. v. Davis, 1937, 301 U.S. 337, 341, 57 S. Ct. 816, 818, 81 L. Ed. 1143, Chief Justice Hughes took a similar view in observing with regard to Title VII of the Revenue Act: "Sections 904 and 905 (7 U.S.C.A. §§ 646, 647) prescribed periods of limitation and provide for the jurisdiction of the District Courts, concurrent with the Court of Claims, for the recovery of amounts collected as floor stock and compensating taxes. Section 906 (7 U.S.C.A. § 648) prescribed the procedure on claims for refunds of processing taxes."
Plaintiff admittedly has no claim on account of floor stocks taxes or compensating taxes illegally collected. The tax burden allegedly borne by him by virtue of Section 18 of the Agricultural Adjustment Act appears to have been that of a processing tax and there has been no suggestion that a constitutional question is raised by the circumstance that the Revenue Act of 1936 fails to provide for refunds to all such vendees of processors.
It may be noted also that when plaintiff filed a claim for payment under Section 602 of the Revenue Act on account of floor stocks held for sale at the first moment of January 6, 1936, with regard to which his complaint indicates a recovery of $4,365, he took an affidavit on P.T. Form 71 that "he was not the processor or other person who paid or was liable for the tax with respect to the articles on which the claim is based". The foregoing quotation, of course, is in accord with the requirements of Section 602. Although the affidavit cannot, under any view, be regarded as settling plaintiff's status under Title VII of the Revenue Act, it is not entirely without interest to this court.
As is apparent from the foregoing, subsequent vendees bearing the tax burden have not entirely been forgotten by the Revenue Act. The plaintiff, himself, by virtue of Section 602 of the Act, has been able to recover all but a small portion of the amounts allegedly paid. The situation complained of arises only because of resales prior to January 6, 1936, in which plaintiff apparently failed to protect himself by including the tax burden in the resale price. If any inequities exist on that account it is a matter for congressional consideration, the jurisdiction of this court being restricted to that bestowed upon it by Congress.
Accordingly, defendant's motion to dismiss the complaint hereby is granted.
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