
    HOLLEY CARBURETOR CO. v. UNITED STATES.
    No. J-270.
    Court of Claims.
    April 2, 1934.
    
      John F. Hughes, of New York City, for plaintiff.
    James A. Cosgrove, of Washington, D C., and Frank J. Wideman, Asst. Atty. Gen. (Elizabeth B. Davis, of Washington, D. C., on the brief), for the United States.
    Before BOOTH, Chief Justice, and GREEN, LITTLETON, WILLIAMS, and WHALEY, Judges.
   WILLIAMS, Judge.

This is an action to recover manufacturers’ excise tax paid on the manufacture and sale of carburetors known as “Holley Carburetor Model N.H.,” and collected under the provisions of section 900 (3) of the Revenue Acts of 1918 and 1921.

During the period from January 1, 1920, to December 31, 1923, plaintiff, by monthly payments, paid to the collector at Detroit, Mich., the sum of $26,652.82 as taxes levied, assessed, and collected under the foregoing sections of the Revenue Acts of 1918 and 1921.

Claim for refund of all the payments was filed on January 31, 1924, and was rejected by the Commissioner of Internal Revenue on Mav 14,1926. Suit was instituted on May 11, 1928.

The plaintiff has not established the fact that it, and not its purchasers, bore the burden of the tax. In the absence of this showing, the suit having been brought subsequent to April 30, 1928, plaintiff’s right to recover is precluded by the provisions of section 424 (a) of the Revenue Act of 1928 (45 Stat. 791, 866 [26 USCA § 2424]). United States v. Jefferson Electric Mfg. Co., 54 S. Ct. 443, 78 L. Ed. -, decided by the Supreme Court February 12, 1934. See also American Bosch Magneto Corporation v. United States (Ct. Cl.) 6 F. Supp. 455, decided to-day.

In view of the fact that the petition will have to be dismissed because of plaintiff’s failure to meet the restrictions imposed by the foregoing provisions of the statute on the refund of excise sales taxes, consideration of the question as to whether the articles sold were, or were not, parts, or accessories of automobiles becomes unnecessary.

The petition is dismissed. It is so ordered.

BOOTH, Chief Justice, and WHALEY, LITTLETON, and GREEN, Judges, concur.  