The opinion of the court was delivered by: KALODNER
During the year 1933 and for several years prior thereto and thereafter until 1937, Nathan L. Roomberg, plaintiff herein, was president and treasurer and sole stockholder of the Ambassador Shirt Company, Inc., a Pennsylvania corporation (hereinafter designated corporation), engaged in the business of manufacturing and selling shirts at wholesale in Philadelphia, Pennsylvania.
On or about March 20, 1937, plaintiff as sole stockholder of the corporation acquired its assets and assumed its liabilities, at which time he surrendered its capital stock. The corporation thereafter ceased doing business.
On or about August 23, 1937, a quo warranto proceeding was instituted in the court of common pleas of Dauphin County, Pennsylvania, by the attorney general of the Commonwealth of Pennsylvania, for the purpose of ousting the corporation from its charter rights. As a result of these proceedings the court on September 20, 1937, entered a decree dissolving the corporation and discontinuing its franchise.
During the year 1933 there was assessed against the corporation a Floor Stock Tax on cotton articles processed wholly or in chief value from cotton, pursuant to the provisions of the Agricultural Adjustment Act of May 12, 1933, c. 25, 48 Stat. 31, Title 7 U.S.C.A. Sec. 601, et seq., in the amount of $4,718.14, which amount was paid by the corporation during the period commencing August 30, 1933, to and including March 11, 1937.
On June 30, 1937, slightly more than three months after the plaintiff had acquired the assets of the corporation and assumed its liabilities, and prior to the dissolution decree of September 20, 1937, the corporation filed a claim for refund of the Floor Stock Taxes, which claim was executed by the plaintiff as president of the corporation.
On December 7, 1938, the Commissioner of Internal Revenue advised the corporation of rejection of the claim for refund.
On December 4, 1940, Nathan L. Roomberg, trading as Ambassador Shirt Company, brought suit against the United States of America to recover the sum of $4,718.14 plus interest, alleging in his complaint that it was erroneously and wrongfully collected from the Ambassador Shirt Company, Inc.
The defendant thereupon filed its motion to dismiss on the ground that Roomberg is not the proper party plaintiff under the applicable statutes.
The statutes involved are:
Revenue Act of 1936, c. 690, 49 Stat. 1648:
"§ 902. Conditions on Allowance of Refunds
"No refund shall be made or allowed, in pursuance of court decisions or otherwise, of any amount paid by or collected from any claimant as tax under the Agricultural Adjustment Act, unless the claimant establishes to the satisfaction of the Commissioner in accordance with regulations prescribed by him, with the approval of the Secretary, or to the satisfaction of the trial court, or the Board of Review in cases provided for under section 906, as the case may be --
"(a) That he bore the burden of such amount and has not been relieved thereof nor reimbursed therefor nor shifted such burden, directly or indirectly, * * *." Title 7 U.S.C.A. § 644, 26 ...