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MORRIS v. UNITED STATES

July 30, 1971

MILTON M. MORRIS D/B/A MILMOR MANUFACTURING COMPANY, PLAINTIFF,
v.
THE UNITED STATES OF AMERICA, DEFENDANT.



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 as follows:

FINDINGS OF FACT

(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:

                             Delinquency
                    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
Total                                     4,396.52

(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 ...


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