Frank Hrubetz & Co., Inc. v. United States

(dissenting):

The parties in their pre-trial order have agreed upon certain facts which define the nature of the action and the determinative issues.

*513 Plaintiff-appellant, Frank Hrubetz and Company, is an Oregon corporation whose principal business activity is the manufacture and sale of amusement rides of the type frequently seen at itinerant carnivals.

The Commissioner of Internal Revenue determined that these amusement rides were subject to an excise tax imposed by Section 4061(a) of the Internal Revenue Code of 1954.

Plaintiff paid $790.05, the tax for the quarter of 1967 ending December 31, 1967 and brought this action to recover this amount as a tax allegedly overpaid. The defendant, in turn, filed a counterclaim for $45,223.18, being the amount of such taxes claimed by the Commissioner as due from the beginning of 1966 to and including the first quarter of 1970, namely, $46,013.23 less the $790.05 paid by plaintiff.

By no stretch of imagination can I conceive of these portable amusement carnival devices being placed in the category of “automobiles” and hence an allegedly taxable article as defined in Section 4061(a)(1) of the Internal Revenue Code of 1954, 26…

The facts in this case are fully delineated in the opinion of the district court in Frank Hrubetz & Co., Inc. v. United States, 412 F.Supp. 1033 (D.Or.1973). We hold that the findings of the court are not clearly erroneous and that it correctly applied the law to the facts. Accordingly, we affirm the judgment of the district court.

542 F.2d 512 76-2 USTC P 16,236 FRANK HRUBETZ & CO., INC., Appellant, v. UNITED STATES of America, Appellee. No. 74-2263. United States Court of Appeals, Ninth Circuit. Sept. 3, 1976. Rehearing and Rehearing En Banc Denied Oct. 28, 1976. Geroge M. Joseph (argued), Portland, Or., for appellant. Wm. A. Friedlander (argued), Tax Div., Dept. of Justice, Washington, D. C., for appellee. Before MOORE, * KILKENNY and SNEED, Circuit Judges. KILKENNY, Circuit Judge: 1 The facts in this case are fully delineated in the opinion of the district court in Frank Hrubetz & Co., Inc. v. United States, 412 F.Supp. 1033 (D.Or.1973). We hold that the findings of the court are not clearly erroneous and that it correctly applied the law to the facts. Accordingly, we affirm the judgment of the district court. MOORE, Circuit Judge (dissenting): 2 The parties in their pre-trial order have agreed upon certain facts which define the nature of the action and the determinative issues. 3 Plaintiff-appellant, Frank Hrubetz and Company, is an Oregon corporation whose principal business activity is the manufacture and sale of amusement rides of the type frequently seen at itinerant carnivals. 4 The…