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CRAFT, Internal Revenue Collector, v. SCHAFER.

(Circuit Court of Appeals, Sixth Circuit.

June 26, 1907.)

No. 1,589.

On rehearing.

Petition dismissed.

For former opinion, see 153 Fed. 175.

Before SEYERENS and RICHARDS, Circuit Judges, and COCHRAN, District Judge.

RICHARDS, Circuit Judge.

In this case we held (see our opinion of March 5, 1907, 153 Fed. 175) that section 3176 of the Revised Statutes U. S. Comp. St. 1901, p. 2088] does not apply in the collection of the special tax exacted for the sale of oleomargarine, so as to authorize the assessment of a penalty of 50 per cent, of the tax for a neglect or refusal to make a return; and, further, that a tax of $6 per annum for selling oleomargarine not artificially colored, which was exacted from certain dealers at substantially the same .time and for the same period that the tax of $48 per annum for selling artificially colored oleomargarine was collected, ought to be refunded. The case has been reargued, but the conclusions we reached after the first hearing have not been disturbed. At the same time, we think we probably went to an unnecessary length in stating: “The oleomargarine acts are complete in themselves. They either contain provisions of‘their own for the enforcement of the tax, or they incorporate such sections of the internal revenue laws as Congress thought ought to be made applicable. Section 3176 of the Revised Statutes was not one of those sections, or Congress would have said so, making it applicable in the enforcement of the oleomargarine tax. This has been the holding in Re Kearns, Collector (D. C.) 64 Fed. 481, and in Re Kinney (D. C.) 102 Fed. 468, not to mention other analogous cases.” By this statement, we adopted the reasoning in the Kearns and Kinney Cases, and inferentially passed upon the applicability of a number of sections of the internal revenué law which, we are informed, are being used, by direction of the Commissioner, in the enforcement of the oleomargarine tax. It was only necessary for us .to pass upon the applicability of section 3176, and to this we think our opin*1003ion should ho limited. There aro a number of reasons why section 3176 can have no applicability which might not obtain with reference to some other section of the general law.

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