384 F2d 924 United States v. E Nelson
384 F.2d 924
67-2 USTC P 15,777
UNITED STATES of America, Appellant,
George E. NELSON et al., Appellees.
United States Court of Appeals Fifth Circuit.
Nov. 15, 1967.
Mitchell Rogovin, Asst. Atty. Gen., Lee A. Jackson, Harry Marselli, Howard M. Koff, Robert N. Anderson, Harris Weinstein, Attys., Dept. of Justice, Washington, D.C., Vernol R. Jansen, Jr., U.S. Atty., Mobile, Ala., for appellant.
Vincent F. Kilborn, Mobile, Ala., Roland J. Mestayer, Jr., Pascagoula, Miss., for appellees.
Before COLEMAN and GOLDBERG, Circuit Judges, and HANNAY, District judge.
This case has been heard on the record, briefs of the parties, and oral argument. We are of the opinion that, as hereinafter modified, the judgment of the Court below should be affirmed.
The opinion of the District Court is published at 260 F.Supp. 70. That Court held that the taxpayers did have the burden of showing the invalidity of the Commissioner's determination of tax liability. The controlling factual question at issue, the accuracy of the adding machine tapes from which the tax was to be computed, was resolved against the Government. We find no basis for holding this to be clearly erroneous.
The District Court held that the records of the taxpayer (which necessarily included the tapes) adequately established the amount of the cabaret sales. This was equivalent to an express finding that the taxpayer had met its burden of establishing the amount of the refund to which it was entitled.
Apparently, the attention of the Court below was not directed to the failure of the taxpayer to include state sales tax as a part of the gross sales upon which the tax was computed. Appellee has agreed at the Bar of this Court to pay the additional tax necessitated by this oversight.
With this modification, the Judgment of the District Court is