
    OTIS THORNTON, INDIVIDUALLY, AND OTIS THORNTON AS THE SURVIVING MEMBER OF AND IN BEHALF OF BOSWELL-KAHN-THORNTON COMMISSION CO. AND KAHN AND THORNTON COMMISSION CO. v. THE UNITED STATES
    [No. 49112.
    Decided February 5, 1952]
    
      
      Mr. Llewellyn A. Luce for the plaintiff.
    
      Mr. John A. Rees, with whom was Mr. Assistant Attorney General Theron Lamar Caudle, for the defendant. Mr. Andrew D. Sharpe and Mr. Ellis N. Slack were on the brief,
    
      Mr. Richard H. Akers, Trial Commissioner.
   Madden, Judge,

delivered the opinion of the court:

In 1944 the Collector of Internal Revenue for the Second District of Texas made a demand upon the plaintiff, Otis Thornton, and upon a partnership of which he had been a member, for taxes asserted to be due under the Federal Insurance Contributions Act and the Federal Unemployment Tax Act for several years prior to 1944. Thereupon Thornton paid on behalf of himself and the partnership $5,891.36 in taxes, interest, and penalties. Thornton is, by succession, the sole owner of the claim here involved. Reference hereinafter to acts of the plaintiff, or of Thornton, may be taken to include acts of the partnerships to whose interests he has succeeded, if those acts occurred during the existence of the partnership.

On April 9, 1947, Thornton filed with the Collector a claim for the refund of the $5,891.36. The basis of the claim was that the number of employees during the taxable period was less than eight, and that therefore the taxing statutes in question were not applicable to the employer. The real problem was whether three named persons, asserted by the Collector to be employees, and whose inclusion would have brought the total number of employees up to eight, were employees, or independent contractors.

On October 14, 1947, a few days more than six months after the claim for refund had been filed, the Collector sent the claim for refund back to Thornton telling him in an accompanying letter that separate claims were required for each of the two kinds of taxes; that a single paper covering the Federal Insurance Contributions tax for the several years in question would suffice, but that as to the Federal Unemployment tax a separate paper must be filed for each calendar year. Blank forms were enclosed. The plaintiff took no steps to comply with the Collector’s directions. On April 18,1949, it filed the instant suit.

The Government’s first contention is that the plaintiff’s claim for refund did not comply with the requirements of Treasury regulations and that the plaintiff is, therefore, in the position of having sued for the recovery of taxes without first having filed a sufficient claim for their administrative refund. If this were the situation, it would defeat the plaintiff’s suit. United States v. Felt and Tarrant Co., 283 U. S. 269, 272; Morristown Knitting Mills v. United States, 95 C. Cls. 552, 566.

As we have said, the plaintiff put its claims for refund of the two types of taxes and for the several different years all in one paper. The asserted impropriety of doing so relates only to one of the kinds of tax, the Federal Unemployment tax. Treasury Regulations 107, promulgated under the Federal Unemployment Tax Act says, in Section 403.602 (b) that each claim for refund should be made on Form 843 and that “a separate claim on such form shall be made for each taxable year.” It says in (d) that any claim not complying with the requirements of this section will not be considered.

Form 843 which the plaintiff used said in line 2:

2. Period (if for income tax, make separate form for each taxable year) from-, 19_, to_, 19-

On the back of the form is a space where the Collector is supposed to tabulate the claim or claims. Its first column is headed “Class of tax and taxable year or period.” Under this heading are eleven line spaces which carry across the page under the other column headings which include, among others, one for the month and one for the year when each item of tax claimed was listed as assessed.

The plaintiff claims, and we agree, that Form 843 indicated that it was proper, when the claim was not for the refund of income taxes, to include in one claim on one paper, taxes paid for several years. He points out that since the period here in question, the Treasury has revised Form 843 to make the form consistent with the pertinent Treasury Regulations.

In the circumstances, we think the plaintiff’s claim for refund, which was clearly sufficient in substance, since it had an attached statement setting forth fully the basis of the claim, was not deficient in form. If the fact was that it was not in a form convenient for processing by the taxing authorities, it got into that inconvenient form because of misleading language used on Form 843.

More than six months elapsed before the Collector returned the plaintiff’s claim to him with directions to put it in a different form. The Collector had not sent the claim on to the Commissioner of Internal Revenue, and he, of course, never gave any consideration to it. Section 3772 of the Internal Revenue Code, 26 U. S. C. 3772, relating to suits for the recovery by a taxpayer of internal revenue taxes alleged to have been erroneously or illegally assessed or collected says in (a) (1) that no such suit shall be maintained until a claim for refund has been filed with the Commissioner of Internal Revenue, and in (a) (2) that:

No such suit or proceeding shall he begun before the expiration of six months from the date of filing such claim unless the Commissioner renders a decision thereon within that time.

The plaintiff’s claim, sufficient in form and substance., having been on file with the Collector for more than six months, though the Collector apparently never forwarded it to the Commissioner, the plaintiff had a right to bring a suit, and to win it if the merits were with him. A few days after this right accrued, his claim was, physically, returned to him, with a direction to refile the claim in a different form. We think that the plaintiff’s conduct in neglecting to make any response to the Collector was inconsiderate and risky, but we do not think it had the effect of forfeiting his already accrued right to bring a suit.

The Government’s second contention is, that if the three persons whom the Collector classified as employees, thus making the plaintiff’s enterprise subject to the two kinds of taxes here in question, were, as the plaintiff claims, not employees but independent contractors, the plaintiff was guilty of participating in a violation of Sections 303 and 403 of the Packers and Stockyards Act, 1921, c. 64, 42 Stat. 159, 7 U. S. C. 203, 223. Section 303 provides that no person shall carry on the business of a dealer in a stockyard, unless he has registered with the Secretary of Agriculture, and imposes a money penalty for noncompliance. Section 403 subjects any dealer to liability for the failure of any person acting for such a dealer to comply with the act. Regulations issued pursuant to the statute, 9 C. F. R. §§ 201.1 to 201.23 as amended January 8, 1943, 8 Fed. Reg. 393-401 provide, in §§ 201.10 and 201.27 that a dealer, in order to register effectively, must furnish a bond to secure the performance of his financial obligations. Sections 201.60, 201.73, and 201.91 of the regulations also impose requirements which seem to have been violated by the plaintiff, if the three persons here involved were independent contractors, as the plaintiff claims. The Government urges that the doctrine of the cases cited by the Supreme Court of the United States in Commissioner v. Heininger, 320 U. S. 467 at 473 prevents the plaintiff from recovering in this suit. The cases there cited were cases of attempts by taxpayers to deduct from income, as “ordinary and necessary” business expenditures, fines or penalties imposed on them for illegal activities, or payments made to buy political influence, or for improper kinds of lobbying.

We think that the plaintiff’s violation of the Packers and Stockyards Act, which seems to have occurred, did not subject him to taxes levied under wholly different laws and having no special relation to the stockyard business. He either had eight employees or did not. If he did, he was taxable. If not, he was not subject to the taxes here in question, however reprehensible it may have been for him to deal through persons who were not his employees, and were not properly licensed as dealers. If he had listed them as employees, and paid the consequent taxes, that would not have relieved him of liability to the penalties for violating the Stockyards Act, if in fact the persons were not employees. We think that to impose these taxes as a penalty for the violation of another law, if they are not by their terms applicable, is not warranted.

We reach at last the merits of the plaintiff’s claim for refund. The activities, on behalf of the plaintiff, of the three persons whose status as employees vel non gave rise to this suit, are described in findings 8-15 and will not be repeated here. Section 1426 (d) of the Internal Revenue Code, 26 U. S. C. 1426 (d) says:

The term employees * * * does not include (1) any individual who, under the usual common-law rules applicable in determining the employer-employee relationship, has the status of an independent contractor * * *.

Treasury Regulation 90, promulgated under Title IX of the Social Security Act, 42 U. S. C. 1101-1110, says, of the employer-employee relation:

Generally the relationship exists when the person for whom services are performed has the right to control and direct the individual who performs the services, not only as to the result to 'be accomplished by the work but also as to the details and means by which that result is accomplished. That is, an employee is subject to the will and control of the employer not only as to what shall be done but how it shall be done.

The activities of the three persons, as described in the findings, seem to us to show that they were not employees. The Government offers us no reason for reaching a contrary conclusion.

The plaintiff is entitled to recover $5,891.36 with interest as provided by law.

It is so ordered.

Howell, Judge; Whitaker, Judge; Littleton, Judges and Jones, Chief Judge, concur.  