The opinion of the court was delivered by: Poos, Chief Judge.
FINDINGS OF FACT AND CONCLUSIONS OF LAW
This cause having come on for trial without a jury and the
Court being fully advised in the premises, after careful
consideration of the evidence and testimony submitted at the time
of trial, in addition to the records, files and memoranda
submitted, now makes its Findings of Fact and Conclusions of Law
(1) This is a Civil Action for the refund of Federal excise
taxes, penalties and interest paid for the fourth quarter of 1963
and all four quarters of 1964 files on August 12, 1968.
(2) Plaintiff is an individual doing business under the name of
Milmor Manufacturing Company, having its principal place of
business at 1300 McKinley Avenue in the City of Venice, State of
Illinois, within the Southern District of Illinois. Defendant is
the United States of America.
(3) Plaintiff, beginning in 1962 and during all intervening
years, is in the steel fabricating business, manufacturing
rectangular steel boxes approximately 17 feet long, 8 feet wide
and 4 feet 9 inches high, some open at the top and others closed,
(7 feet high), and modifying trucks purchased elsewhere by adding
hydraulic lift equipment to the truck frame assembly so that the
truck can lift the steel box (also known as "container") on to
the truck for movement to another location.
(4) Plaintiff filed timely excise tax returns, Form 720, for
the five taxable periods in the suit, and reported manufacturer's
excise tax on the modifications he added to the truck, but
reported no tax with respect to the rectangular steel boxes.
(5) As a result of an audit by an agent of the Commissioner of
Internal Revenue, certain deficiencies were recommended, based on
the includibility of these rectangular steel boxes as taxable
"automobile truck bodies" within Section 4061(a)(1) of the
Internal Revenue Code of 1954.
(6) After a full and comprehensive administrative review,
including an Appellate Conference in Springfield, Illinois, and
a National Office Conference in Washington, D.C., the agent's
findings were sustained.
(7) On January 19, 1968 plaintiff was assessed, as is here
applicable, for the five quarters, as follows:
Tax Penalty Interest
4th Q. 1963 790.92 197.73 189.24
1st Q. 1964 446.60 111.65 100.23
2nd Q. 1964 395.45 98.86 82.76
3rd Q. 1964 644.33 161.08 125.17
4th Q. 1964 736.39 184.10 132.01
-------- ------ --------
Sub Total 3,013.69 753.42 629.41
(8) On February 13, 1968, plaintiff paid the above assessment
of $4,396.52 for the deficiencies under Section 4061(a)(1) of
the Internal Revenue Code of 1954.
(9) On February 16, 1968 plaintiff timely filed a claim for
refund in the amount of $4,396.52, plus statutory interest in
which claim was disallowed by the Commissioner on June 19, 1968.
(10) During the five quarters in suit plaintiff manufactured 31
rectangular steel boxes, (also known as "containers"), selling 16
of them to the Millstone Construction Company, and the other 15
to the Alberici Construction Company. Plaintiff also modified
three trucks, selling one to the ...