127 F.2d 965 | 3rd Cir. | 1942
The plaintiff sells nightgowns, pajamas and slips which it manufactures from cotton cloth. It paid floor stock taxes imposed by the Agricultural Adjustment Act, 7 U.S.C.A. § 601 et seq., upon such goods. That act was declared unconstitutional
The conditions which must be met by a claimant for refund of taxes collected under the Agricultural Adjustment Act are set forth in Section 902, Title VII of the Revenue Act of 1936, 7 U.S.C.A. § 644. One of these is that he bore the burden of the tax. The burden of proof is placed by the act upon the claimant.
In a case tried without a jury, Civil Procedure Rule 52(a), 28 U.S.C.A. following section 723c governs. The relevant portion of this rule provides that “Findings of fact shall not be set aside unless clearly erroneous, and due regard shall be given to the opportunity of the trial court to judge of the credibility of the witnesses.” This rule permits review to the extent formerly allowed in federal equity practice. 3 Moore’s Federal Practice, § 52.01, p. 3118. In equity if it clearly appeared that the court misapprehended the evidence its findings of fact might be set aside. Pollock v. Jameson, 1934, 63 App. D.C. 152, 70 F.2d 756. The plaintiff contends that the trial judge misapprehended the purport of the testimony of Edward A. Katz, its chief witness, and that it was because of this misapprehension that he found the plaintiff’s evidence conflicting and not worthy of belief. We have accordingly examined that testimony in order to determine whether the district court misconstrued it.
Katz’s testimony upon direct examination may be summarized as follows: As treasurer of the plaintiff corporation it was his duty to compute the prices. The plaintiff has two selling seasons, January
Upon cross examination the witness testified that as early as April, 1933 he knew of the possibility of the imposition of a tax upon cotton but that he did not know the rate or amount of the tax.
The plaintiff argues that the reason the trial judge found Katz’s testimony conflicting was because he did not realize that Katz was referring to two different periods, that is, the period prior to August 1, 1933 to which he referred in his affidavit and redirect examination, and the period subsequent to August 1, 1933, to which he referred in his direct and cross examination. However, we find no evidence that the trial judge was confused on this point for throughout the opinion he differentiates between the two periods and the price increases applicable to each period.
United States v. Butler, Jan. 6, 1936, 297 U.S. 1, 56 S.Ct. 312, 80 L.Ed. 477, 102 A.L.R. 914.
Anniston Mfg. Co. v. Davis, 301 U.S. 337, 347-353, 57 S.Ct. 816, 81 L.Ed. 1143.
The Agricultural Adjustment Act, 1933, was enacted May 12, 1933, the rate of the floor tax on cotton was determined July 14, 1933 and the effective date of the imposition of the tax was August 1, 1933.
Thus the trial judge states “Edward Katz testified that Plaintiff increased its prices effective August 1, 1933 in the total sum of $1,400.00, and after August 1, 1933 it increased its prices in the total sum of $1,482.10 . . .” While the evidence does not appear to support the definite amount of the earlier price increase mentioned by the trial judge it does clearly support his conclusion that a price increase prior to August 1, 1933 was in fact made.