
    JEFFERSON ELECTRIC MANUFACTURING COMPANY v. THE UNITED STATES
    [No. K-94.
    Decided June 3, 1935]
    
      Mr. Newton K. Foa> for the plaintiff. Messrs. George P. MoCabe and Adrian C. Humphreys were on the briefs.
    
      Messrs. Ja/rnes.A. Cosgrove and Jesse R. FiTlmcm, with whom was Mr. Assistant Attorney General Frank J. Wide-man, for the defendant.
   Whalet, Judge,

delivered the opinion of the court:

This is a suit for the recovery of excise taxes paid by plaintiff during the period from May 19, 1923, to February 26, 1926, on ignition coils manufactured and sold by plaintiff. The case was previously considered by this court at which time we held that the ignition coils sold by plaintiff were not subject to excise tax under section 900 of the Revenue Acts of 1918 and 1921 and section 600 of the Revenue Act of 1924. 77 C. Cls. 199. Certiorari was thereafter granted and the decision of this court reversed on the ground of uncertainty as to whether plaintiff bore the burden of the tax sought to be refunded or whether it had passed the tax on to its customers. In remanding the case to this court, the Supreme Court said:

“The findings leave it uncertain whether the plaintiff in 'making its returns to the revenue officers gave the amount shown on the invoices or 20/21 (later 40/41) of that amount as the selling price; and they also leave it uncertain' on which basis the tax was computed. If by its invoices the plaintiff represented to its purchasers that the amount shown thereon included the tax as well as the selling price, and if it returned that amount less the tax as the selling price, and caused the tax. to be computed on that basis,, it cannot be heard' to say, in the absence of other controlling circumstances of which there is no finding, that it did not collect the tax from the purchasers but itself bore the burden thereof.”

Plaintiff was accordingly, given a new trial at which .additional evidence was submitted, and we have' made special findings on the basis of the entire record. It is clear from the record as now presented that plaintiff, in making returns to the revenue officers, gave 20/21 or 40/41, depending upon the period involved, as the selling price and computed the tax which it now seeks to have refunded upon those fractional amounts of the invoice price. We are also unable to find any controlling circumstances which would permit plaintiff to say that it did not collect the tax from its purchasers but itself bore the burden thereof. We are accordingly of the opinion that this case falls squarely within the principle laid down in Jefferson Electric Manufacturing Company v. United States, supra, and Virginia Carolina Rubber Company v. The United States, 79 C. Cls. 693, which preclude recovery.

The petition must be dismissed. It is so ordered.

Williams, Judge; LittletoN, Judge; GkeeN, Judge; and Booth, Chief Justice, concur.  