purchased food and drink worth $20.00 or more, no charge was imposed. The payment of this $20.00 monthly minimum was a condition of membership.
During the period August 1, 1961, through December 31, 1962, the plaintiff's dining room and bar purchases exceeded $20.00 each month and he was not billed for any "house charges" over and above his actual purchases during that period. The government, taking the view that the club resolution amounted to an assessment of additional dues on each member, levied an excise tax of some $73.46 on the plaintiff for the above stated period under 26 U.S.C.A. §§ 4241, 4242, in addition to the tax on his regular membership dues. The tax was paid and a claim for refund filed, which claim the government has disallowed.
It is significant that, in this case, the club purchases made by the plaintiff, were not, as such, subject to the excise tax, and that he was never billed for any other amount. It appears, therefore, that he was taxed for an assessment which was never made or paid. The fact that, as a condition of his continued membership, an assessment might have been made under other circumstances is of no consequence. The resolution merely authorizes assessments to be subsequently made, none of which could have been made applicable to this plaintiff at any time during the period involved. Payments for the purchase of food are one thing - charges for social privileges or facilities are another. The tax embraces dues and assessments paid, and the evidence does not disclose that the plaintiff either did or would have paid any amount in excess of his purchases.
Defendant's motion for summary judgment is denied and an appropriate order for judgment in favor of the plaintiff will be entered.
AND NOW, this 22nd day of April, 1965, plaintiff's motion for summary judgment is granted and it is hereby ordered that judgment be entered in favor of the plaintiff, David B. Buerger, and against the United States of America in the amount of $73.46, together with interest and costs.
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