The opinion of the court was delivered by: LORD
JOSEPH S. LORD, III, Chief Judge.
This is an action by an automobile dealer for a refund of the federal excise tax on passenger automobiles, repealed by § 401 of the Revenue Act of 1971, P.L. 92-178, 85 Stat. 497 (December 10, 1971) ("Act"). Defendant has moved to dismiss for lack of jurisdiction over the subject matter. F.R. Civ. P. 12(b) (1). The motion will be granted for the reasons which follow.
Section 401(b) of the Act provided that a "manufacturer, producer, or importer" of passenger automobiles may receive a credit or refund from the Secretary of the Treasury of excise tax paid on passenger automobiles sold to a dealer on or before December 10, 1971, and held for sale by the dealer on that date. In order to receive this credit or refund, § 401(b) (1) (A) requires the "manufacturer, producer, or importer" to file a timely claim with the Secretary of the Treasury, and § 401(b) (1) (B) requires the "manufacturer, producer, or importer" to reimburse the dealer in the amount of the excise tax or obtain a written consent to the allowance of the credit or refund.
Section 401(c) of the Act provides for a credit or refund to a "manufacturer, producer, or importer" as to excise taxes on passenger automobiles sold to ultimate consumer purchasers after August 15, 1971 but on or before December 10, 1971. Section 401(c) (2) requires the "manufacturer, producer, or importer" to file a timely claim with the Secretary of the Treasury after first reimbursing the ultimate consumer purchaser.
Before August 16, 1971, plaintiff had purchased from General Motors Corporation thirty-two new Cadillac automobiles on which federal excise tax in the amount of $14,968.97 had been paid. Between August 16, 1971 and December 10, 1971, plaintiff sold twenty-seven new Cadillac automobiles to ultimate consumer purchasers, and in anticipation of the well-publicized pending repeal of the federal excise tax, it made refunds of the tax to these ultimate consumer purchasers. On December 10, 1971, plaintiff held in its inventory for sale to ultimate consumer purchasers five new Cadillac automobiles.
Plaintiff repeatedly made demand against General Motors Corporation to file a claim for and make refund to plaintiff of both the $12,653.49 excise tax paid on the twenty-seven new Cadillacs sold to consumers before December 10, 1971 and the $2,315.48 excise tax paid on the five Cadillacs held in inventory on December 10, 1971.
Finally, plaintiff alleges that it filed a timely claim for refund with the Internal Revenue Service with regard to all thirty-two automobiles in question, demanding refund of the excise tax in the amount of $14,968.97.
Defendant argues that plaintiff is not a manufacturer, producer, or importer within the meaning of § 401 of the Act, and therefore is not a proper party to file a claim for refund of the excise tax under that section. We agree.
Jurisdiction in this case is based on 28 U.S.C. § 1346(a) (1) which provides that the district courts have original jurisdiction of:
"Any civil action against the United States for the recovery of any internal-revenue tax alleged to have been erroneously or illegally assessed or collected, or any penalty claimed to have been collected without authority or any sum alleged to have been excessive or in any manner wrongfully collected under the internal-revenue laws * * *."
However, 26 U.S.C. § 7422(a) requires the filing of a refund claim with the Secretary of the Treasury or his designate, "according to the provisions of law in that regard," before institution of a civil suit for a refund. See Schuylkill Haven Trust Co. v. United States, ...