Appendix — Fuhrman & Forster Co. v. Commissioner

AROSIUE I MTN IA DEON NN Drie ue 7 ppiermmminrecsc

a

APPENDIX

Agricultural Adjustment Act, ¢. 25, 48 Stat. 31:

Sec. 9. (a) To obtain revenue for extraor-

dinary expenses incurred by reason of the

national economic emergency, there shall be

levied processing taxes as hereinafter pro-

vided. When the Secretary of Agriculture

determines that rental or benefit payments

are to be made with respect to any basic ag-

ricultural commodity, he shall proclaim such

determination, and a processing tax shall be

in effect with respect to such commodity

from the beginning of the marketing year

therefor next following the date of such

proclamation. The processing tax shall be

levied, assessed, and collected upon the first

domestic processing of the commodity,

whether of domestic production or imported,

and shall be paid by the processor. The rate

of tax shall conform to the requirements of

subsection (b). Such rate shall be deter-

mined by the Secretary of Agriculture as of

the date the tax first takes effect, and the rate

so determined shall, at such intervals as the

Secretary finds necessary to effectuate the

declared policy, be adjusted by him to con-

form to such requirements. The processing

tax shall terminate at the end of the market-

ing year current at the time the Secretary

proclaims that rental or benefit payments are

to be discontinued with respect to such com-

modity. The marketing vear for each com-

modity shall be ascertained and prescribed

(11)

DIB MWE ON ITS

FLY AIRS PROT, 2a Cet SA

mane

Sale ot VES EN Re TS EN NS ela ie PEE NA GEE Bit Hie Uo LRAT Sag Ma Pad ——e

j 12

by regulations of the Secretary of Agricul-

ture: Provided, That upon any article upon

which a manufacturers’ sales tax is levied

under the authority of the Revenue Act of

1932 and which manufacturers’ sales tax is

computed on the basis of weight, such manu-

facturers’ sales tax shall be computed on the

basis of the weight of said finished article

less the weight ef the processed cotton con-

tained therein on which a processing tax has

been paid.

* * * * *

(d) As used in part 2 of this title—

(1) In ease of wheat, rice, and corn, the

term ‘‘processing’’ means the milling or

other processing (except cleaning and dry-

ing) of wheat, rice, or corn for market, in-

cluding custom milling for toll as well as

commercial miling, but shall not include

the grinding or cracking thereof not in the

form of flour fer feed purposes only.

(2) In ease of cotton, the term ‘ process-

ing’? means the spinning, manufacturing,

or other processng (except ginning) of cot-

ton; and the term ‘‘cotton”’ shall not include

cotton linters.

(3) In ease of tobacco, the term “‘ process-

ing’? means the manufacturing or other

processing (exeept drying or converting

into insecticides and fertilizers) of tobacco.

(4) In ease of hogs, the term ‘‘ process-

ing’? means the slaughter of hogs for

market.

(5) In the case of any other commodity,

the term “‘ processing’? means any manufac-

turing or other processing involving a

change in the form of the commodity or its

preparation for market, as defined by regu-

lations of the Secretary of Agriculture ; and

CRORES CUE RSS OE OF MEETS

13

in prescribing such regulations the Secre-

tary shall give due weight to the customs of

the industry.

* * * * *

[U. 8. C., Title 7, Sec. 609.]

Revenue Act of 1936, c. 690, 49 Stat. 1648:

TITLE VII—REFUNDS OF AMOUNTS COLLECTED

UNDER THE AGRICULTURAL ADJUSTMENT ACT

Sec. 902. CoNpDITIONS 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 Ad-

justment 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, (1) through

inclusion of such amount by the claimant,

or by any person directly or indirectly under

his control, or having control over him, or

subject to the same common control, in the

price of any article with respect to which

a tax was imposed under the provisions of

such Act, or in the price of any article proc-

essed from any commodity with respect to

which a tax was imposed under such Act,

or in any charge or fee for services or proc-

essing; (2) through reduction of the price

paid for any such commodity; or (3) in

any manner whatsoever; and that no under-

Son FV away

ELBA PLE RLE NAA EILEEN SOI SUE I ANNs POA STING bb Bh

14

standing or agreement, written or oral,

exists whereby he may be relieved of the

burden of such amount, be reimbursed

therefor, or may shift the burden thereof ;

or

(b) That he has repaid unconditionally

such amount to his vendee (1) who bore the

burden thereof, (2) who has not been relieved

thereof nor reimbursed therefor, nor shifted

such burden, directly or indirectly, and (3)

who is not entitled to receive any reimburse-

ment therefor from any other source, or to be

relieved of such burden in any manner what-

soever. [U. S. C. Supp. V, Title 7, See.

644. |

Sec. 905. JURISDICTION OF COURTS.

Concurrent with the Court of Claims, the

District Courts of the United States (ex-

cept as provided in section 906 of this title)

shall have jurisdiction of cases to which this

title applies, regardless of the amount in

controversy, if such district courts would

have had jurisdiction of such eases but for

limitations under the Judicial Code, as

amended, on jurisdiction of such courts

based upon the amount in controversy. The

United States Customs Court shall not have

jurisdiction of any such cases. [U. © 9.

Supp. V, Title 7, See. 647.]

Sec. 906. PRocEDURE ON CLAIMS FOR RE-

FUNDS OF PROCESSING TAXES.

(a) Notwithstanding any other provision

of law, no suit or proceeding, whether

brought before or after the date of the enact-

ment of this Act, shall be brought or main-

tained in any court for the refund of any

amount paid or collected as processing tax,

as defined herein, under the Agricultural

Adjustment Act, except as provided in this

section. The Commissioner shall allow or

disallow, in whole or in part, any claim for

refund of any such amount within three

years after such claim was filed, unless such

time has been extended by written consent of

the claimant.

(b) There is hereby established in the

Treasury Department a Board of Review

(hereinafter referred to as ‘‘the Board’’).

* * * The Board shall have jurisdiction

in proceedings under this section to review

the allowance or disallowance of the Com-

missioner of a claim for refund, and to deter-

mine the amount of refund due any claimant

with respect to such claim. The Commis-

sioner shall make refund of any such amount

determined by a decision of the Board which

has become final. The proceedings of the

Board and its divisions shall be conducted in

accordance with such rules and regulations

as the Board may prescribe, with the ap-

proval of the Secretary.

* * * * *

(g) A review of the decision of the

Board, made after the hearing provided in

this section, may be obtained by the claim-

ant or Commissioner by filing a petition for

review in the Circuit Court of Appeals of

the United States within any cireuit where-

in such claimant resides, or has his princi-

pal place of business, or, if none, in the

United States Court of Appeals for the

District of Columbia, or any such court

which may be designated by the Commis-

sioner and the claimant by stipulation in

writing, within three months after the date

of the mailing to the claimant and the Com-

missioner of the copy of the findings and

decision of the Board. * * * [U. S.C.

Supp. V, Title 7, Sec. 648.]

z

ix

%

>.

#

te

e

%

KI

¥

Poy

it

&

a

&

R

s

¢

:

33

x

£

&.

e

&

#

&

¢

aa

SUT RP RIREAST

PARENT LOOTED VALI PSE

16

Src. 907. EvipENCE AND PRESUMPTIONS.

(a) Where the refund claimed is for an

amount paid or collected as processing tax,

as defined herein, it shall be prima-facie

evidence that the burden of such amount

was borne by the claimant to the extent

(not to exceed the amount of the tax) that

the average margin per unit of the com-

modity processed was lower during the tax

period than the average margin was during

the period before and after the tax. If the

average margin during the tax period was

not lower, it shall be prima-facie evidence

that none of the burden of sueh amount was

borne by the claimant but that it was shifted

to others.

* * * * *

[U.S. C. Supp. V, Title 7, Sec. 649.]

Sec. 910. LiaBiLity OF COLLECTORS.

No collector of internal revenue or cus-

toms, or internal revenue or customs officer

or employee, shall be in any way liable to

any person for any act done by him in the

assessment or collection of any amount as

tax under the Agricultural Adjustment

Act, or for the recovery of any money ex-

acted by or paid to him and paid into the

Treasury, in performance of his. official

duties under the provisions of such Act, or

if such collector or officer acted under the

direction of the Secretary or other proper

officer of the Government. [U, 8. C. Supp.

V, Title 7, See. 652.]

Src, 913. DEFINITIONS,

When used in this title—

(a) The term ‘‘tax’’ means a tax or ex-

action denominated a ‘‘tax’’? under the

Agricultural Adjustment Act, and shall in-

clude any penalty, addition to tax, addi-

tional tax, or interest applicable to such

tax.

ie

17

(b) The term “processing tax’? means

any tax or exaction denominated a ‘‘proe-

essing tax’? under the Agricultural Adjust-

ment Act, but shall not include any amount

paid or collected as tax with respect to the

processing of a commodity for a customer

for a charge or fee.

* & * * *

[U. S. C. Supp. V, Title 7, See. 655.]

Sec. 916. RULES AND REGULATIONS.

The Commissioner shall, with the ap-

proval of the Secretary, prescribe such rules

and regulations as may be deemed necessary

to carry out the provisions of this title.

[U. S. C. Supp. V, Title 7, See. 658.]

Treasury Regulations 81, promulgated under the

Agricultural Adjustment Act:

Art. 2. Definitions—When used in these

regulations, the term

* * * * *

(h) Processing has various meanings, de-

pending upon the commodity in question :

(1) In ease of wheat, rice, and corn, the

term ‘‘processing’? means the milling or

other processing (except cleaning and dry-

ing) of wheat, rice, or corn for market, in-

eluding custom milling for toll as well as

commercial milling, but shall not inelude

the grinding or cracking thereof not in the

form of flour for feed purposes only.

(2) In case of cotton, the term ‘‘proe-

essing’? means the spinning, manufacturing,

or other processing (except ginning) of cot-

ton; and the term ‘‘cotton”’ shall not inelude

cotton linters.

(3) In case of tobacco, the term ‘‘proe-

essing’? means the manufacturing or other

processing (except drying or converting in-

to insecticides and fertilizers) of tobacco.

eeimmaiillinas NOTE ARDS OARS LMT RIT A OTRO IT

18

(4) In ease of hogs, the term “process-

ing’’ means the slaughter of hogs for market,

(5) In the case of any other commodity,

the term ‘processing’? means any manufac-

turing or other processing involving a change

in the form of the commodity or its prepara-

tion for market, as defined by regulations of

the Secretary of Agriculture. In the event

that a tax becomes effective with respect to

a competing commodity the Commissioner of

Internal Revenue will announce the regula-

tions of the Secretary of Agriculture defin-

ing ‘‘processing”’ as respects such competing

commodity.

(i) Processor is any person who does the

first domestic ‘‘processing’”’ (as defined in

paragraph (h), above) of any commodity.

(j) Processing tar means the tax under

the Act on the first domestic processing of a

commodity.

* * * * *

Treasury Regulations 96, promulgated under the

Revenue Act of 1936:

ARTICLE 101. Definitions—As used in

these regulations—

* * * * *

(h) Custom processing taxr.—The term

“custom processing tax’? means the amount

paid under the Agricultural Adjustment Act

as tax on the first domestic processing of

that quantity of a commodity which was

processed for a customer for a charge or fee.

Examples: Milling of wheat for toll ; slaught-

ering of hogs for a charge or fee.

(i) Charge or fee for processing—The

term ‘‘charge or fee for processing” ‘in-

cludes any form of compensation charged or

taken by the processor for services rendered

in processing a commodity for a customer,

* * * * *

- —————————————————EEE

ae

eee

19

(k) Paid as tax.—The term “‘paid as tax”’ ;

includes any amount paid to, or collected by, :

a collector of internal revenue or a collector

of customs as tax under the Agricultural Ad-

justment Act.

* * * 7 7

ARTICLE 201. Claims—Form and where to

file-—Claims for the refund of tax shall be

made on the prescribed forms. Such claims

shall be prepared in accordance with the

instructions contained on the forms and in

accordance with the provisions of these regu-

lations. Each claim (except claims for re-

fund of compensating tax—see article 401)

shall be filed with the collector of internal

revenue for the district wherein the claim-

ant has his principal place of business. If

the claimant has no principal place of busi-

ness in the United States, the claim shall be

filed with the collector of internal revenue

located at Baltimore, Md. Copies of the

prescribed forms may be obtained from any

collector of internal revenue.

* * * * *

Article 501. Claim form prescribed. —

Claims for refund of amounts paid as tax

on the first domestic processing of a com-

modity with respect to that quantity of the

commodity processed for a customer for a

charge or fee, and which tax is identified in

these regulations as ‘‘eustom processing tax”’

(see paragraph (h) of article 101), shall be

filed on P. T. Form 78. (See Chapter II

of these regulations for general provisions

relating to all claims. )

Arr. 502. Limitation as to number of

claims.—A separate claim shall be filed with

respect to each commodity processed. Only

one claim shall be filed by any person with

respect to the total amount paid by such per-