The opinion of the court was delivered by: CLARY
A different aspect of this case was before this Court on another occasion. Certain taxes were assessed against the present plaintiff, an alleged manufacturer of adulterated butter. In the first action he sued to enjoin collection of the taxes. Judge McGranery on February 18, 1948 in an opinion reported at 76 F.Supp. 805, Gehman v. Smith, Collector of Internal Revenue, Civil Action No. 7761, held a tax assessed against a manufacturer of butter adulterated by excessive moisture to be a 'tax' and not a 'penalty', and dismissed the complaint. Thereupon, plaintiff paid the assessment and sued the Collector of Internal Revenue in this action for refund of the taxes paid.
From the pleadings, proof, requests for admissions, testimony and exhibits, I make the following:
1. The plaintiff, Marvin L. Gehman, resides at R.D. 2, Telford, Montgomery County, Pennsylvania, and at all times material hereto was engaged in business under the trade name 'Branch Valley Creamery'.
3. That on or about the 1st day of November, 1946, there was duly assessed against the plaintiff as taxes under the aforementioned Sections of the Internal Revenue Code the sum of $ 4,289.40.
4. That thereafter plaintiff paid the amount of said taxes assessed as aforesaid and on May 5, 1949 filed a claim for refund of said taxes, which claim was rejected.
5. That this action is timely brought.
6. During the period January 1st to June 30th, 1946, the plaintiff produced the following products and taxes and penalties were assessed and paid as follows:
"Under Sec. 2321 (a) (1) Pounds at 10 cents Tax paid
"Butter made from cream:
for Costella Bros. 4,500 450.00
for Paul Bowen 6,980 698.00
for self 3,255 325.50
"'Plastic' cream put in prints for
Witchwood Farms 2,520 252.00
"Rechurned tub butter put in prints 21,889 2,188.90
"Special tax (Section 3206 (a) (2) 300.00
Ad valorem penalty 25% 75.00 375.00
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