Castle, Chief Judge, Knoch, Senior Circuit Judge, and Kiley, Circuit Judge.
KNOCH, Senior Circuit Judge.
The plaintiff-appellant, Vernie Loren West, doing business as West Coach Mfg. Co., manufactured and sold "pickup" campers, portable dwelling units designed to be carried in a pick-up truck. The plaintiff remitted excise taxes on these campers as follows:
December 31, 1962 $340.78
December 31, 1963 3,351.74
December 31, 1964 6,349.43
On May 25, 1966 plaintiff's claim for refund, filed December 29, 1965, on the ground that such campers were not subject to the tax (relying on the holding in United States v. King Trailer Company, 9 Cir., 1965, 350 F.2d 947) was rejected.
Plaintiff then filed his action in the United States District Court asserting the above exemption and seeking refund of excise taxes paid. The government moved to dismiss the action on the ground that the claim for the third quarter of 1962 was untimely*fn* and that the entire claim was improper for failure to allege that the excise tax was not included in the price and had not been collected from purchasers of the campers, and that the failure to make similar allegations in the complaint rendered it subject to dismissal for failure to state a claim on which relief could be granted.
The District Judge concluded that filing of a proper claim for refund was an essential prerequisite to jurisdiction and dismissed the action. The plaintiff then sought to file an amended complaint which alleged that the tax had not been passed on to the purchaser or, in the alternative, that plaintiff would submit purchasers' consents to the suit for refund. The District Judge held that the proposed amendment would be ineffective to cure the deficiency in the claim itself and denied leave to file the amended complaint. This appeal followed.
The parties agree that § 6416(a)(1)(A) & (D) of the Internal Revenue Code of 1954 (Title 26 U.S.C.) conditions refund on a showing that the claimant has not passed the tax on to the purchaser, has repaid the purchaser, or has a written consent from the purchaser to allowance of the refund. However, plaintiff contends that this showing is a condition precedent only to actual refund or satisfaction of judgment, despite regulations implementing this statute which require a taxpayer to submit in support of his claim a statement or consent as described in the ...