413 F2d 1041 Accurate Electric Co v. Government of Guam

413 F.2d 1041

69-2 USTC P 9605

ACCURATE ELECTRIC CO. (GUAM) Inc., Appellant,
v.
GOVERNMENT OF GUAM, Appellee.

No. 22482.

United States Court of Appeals Ninth Circuit.

June 3, 1969.

Walter Scott Barrett (argued), of Barrett & Ferenz, Oakland, Cal., and Agana, Guam, for appellant.

Paul J. Abbate (argued), Atty. Gen., Thomas M. Wilkins, Asst. Atty. Gen., Government of Guam, Agana, Guam, for appellee.

Before POPE,1 HAMLEY and MERRILL, Circuit Judges.

PER CURIAM:

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1

Accurate, seeking refund of Guam income taxes for the years ending 1960, 1961 and 1962, appeals from a judgment dismissing its claim with prejudice and granting the government's counterclaim.

2

Four of the five specifications of error challenge the trial court's findings and conclusion that Accurate (rather than an affiliated company) was taxable for profits realized on the 'materials' portion of certain construction work. The government's determination is presumptively correct, and it is the taxpayer's burden to demonstrate its incorrectness. Fulton Container Co. v. United States, 355 F.2d 319, 324 (9th Cir. 1966). We cannot say that the findings of the trial court were clearly erroneous.

3

The fifth specification, abuse of discretion in refusing to grant appellant's motion for a new trial, is also without merit. Neither the court nor the government misled appellant. Appellant alone bears the responsibility for the choice of evidence it presented at trial, and it is not entitled to guidance from the court or government on how to conduct a legal proceeding.

4

Affirmed.

1

The late Judge Walter L. Pope participated in the case and concurred in the result here reached but died before preparation of this opinion